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HomeMy WebLinkAboutDraft 26217 Ordinance Wetlands Submittal ORDINANCE AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTIONS 38.610.030 (APPLICATION OF WETLAND REGULATIONS), 38.610.040 (APPLICATION OF WETLAND REGULATIONS), 38.620 (WATERCOURSE SETBACKS), AND 38.710.120. SUBMITTAL MATERIALS FOR REVIEW OF ACTIVITIES IN OR ADJACENT TO WETLANDS AND WATERCOURSES OF THE BOZEMAN MUNICIPAL CODE WILL BE AMENDED, APPLICATION 26217. WHEREAS, the City of Bozeman has adopted a land use plan, zoning regulations, and a zoning map pursuant to Sections 76-25et.seq., M.C.A.; 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 May 12, 2026, to receive information on wetlands and watercourse submittal requirements and changing federal regulations and to give direction on preparation of proposed amendments to the City’s wetland submittal requirements; and WHEREAS, after proper notice, the Community Development Board in their capacity as Bozeman Planning Commission held a public hearing on August 17, 2026, to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the Community Development Board in their capacity as Bozeman Planning Commission recommended to the Bozeman City Commission an Ordinance, be approved as proposed; and WHEREAS, after proper notice, the City Commission held its public hearing on September 1, 2026, to receive and review all written and oral testimony on proposed Ordinance; and WHEREAS, the City Commission has reviewed and considered the applicable amendment criteria established in Montana Code Annotated § 76-25-304, 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 §§ 76-25. 2. The City adopted updated regulations and standards to protect and mitigate impacts to wetlands and watercourses in 2025, by Ordinance 2026-04. The City’s regulations have concurrent jurisdiction with other regulatory agencies. 3. The City adopted a land use plan, the Bozeman Community Plan 2025 (BCP 2025), by Resolution 2025-71 to establish policies for development of the community. 4. The BCP 2025, 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 2025, and has found that the required criteria of Montana Code Annotated § 76-25-304 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 Planning 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 Planning Commission, 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. 13. The language included with this ordinance will be the basis for public review of development applications. Section 2 That Section 38.610.030 (Application of wetland regulations), Bozeman Municipal Code shall be amended as follows: … E. The review authority may grant preliminary approval of a development application in conformance with all applicable standards and regulations prior to final Jurisdictional Determination being issued by the USACE and determination of status issued by the Gallatin Conservation District (GCD) as may be applicable to an individual development. Based on the final decision of the USACE or GCD modifications to an approved plan may be required pursuant to section 38.740.120; material modifications to a plat are subject to 38.100.070 and 38.750.090. Section 3 That Section 38.610.040 (Application of wetland regulations) shall be amended as follows: 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 or if the applicant chooses to assume federal jurisdiction by entering the Clean Water Act Section 404 permitting process 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, or prior to final plan approval, 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. 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 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. Section 4 That Division 38.620 (Watercourse setbacks), Bozeman Municipal Code shall be amended as follows: … F. The review authority may grant preliminary approval of a development application in conformance with all applicable standards and regulations prior to final Jurisdictional Determination being issued by the USACE and determination of status issued by the Gallatin Conservation District (GCD) as may be applicable to an individual development. Based on the final decision of the USACE or GCD modifications to an approved plan may be required pursuant to section 38.740.120; material modifications to a plat are subject to 38.100.070 and 38.750.090. Section 5 That Section 38.710.120 (Submittal materials for regulated activities in wetlands), Bozeman Municipal Code shall be amended as follows: Sec. 38.710.120. 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. Section 6 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 7 Savings Provision. This Ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this Ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 8 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this Ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this Ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 9 Codification. Sections 2-4 of this Ordinance shall be codified as instructed in the individual sections. Section 10 Effective Date. This Ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of September 2026. ____________________________________ JOEY MORRISON Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk 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 ___________________, 2026. The effective date of this ordinance is __________, ____, 2026. _________________________________ JOEY MORRISON Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney