Publisher's Note: This Section has been AMENDED by new legislation (Ord. 23-27
). The text of the amendment will be incorporated below when the ordinance is codified.
A. Water Quality Identification Form And Report:
1. Form Requirements: Prior to the city's consideration of development within two hundred feet (200') of a water quality protection area and not found to be exempt under subsection 11-3-29B1 of this title, the applicant shall submit to the director a complete water quality protection identification form, provided by the city, including a site plan drawn to a suitable engineering scale (1 inch = 10 feet, 1 inch = 20 feet, etc.). The site plan, which is not intended to require a formal land survey, shall at a minimum include the following:
a. Boundaries of the subject property.
b. All existing and proposed improvements, including buildings, parking and storage areas, driveways, decks, patios, wells, septic systems, drain fields, fuel tanks, utilities, easements, and areas to be cleared or graded.
c. Name and description of the adjacent street (R/W width, pavement width, type of surface, public or private, sidewalk, curb and gutter, etc.).
d. Accurate location of critical stormwater conveyances regulated under this section on the property, or lakes, rivers, streams, or wetlands on the property or within two hundred feet (200') of the development site.
e. Identification of those parts of the development site with slopes greater than ten percent (10%), if located within two hundred feet (200') of a lake, river, stream or wetlands.
The director may waive requirements for the site plan if the director determines the completed water quality protection identification form is sufficient to ensure compliance with this section.
2. Form Review: The director shall review the water quality protection identification form and site plan and shall conduct a site inspection and review other information available pertaining to the site and the proposal. The director shall then make a determination as to whether any water quality protection areas may be affected by the proposal. If the director finds that no water quality protection areas are present on or adjacent to the development site or that the proposal will not impact a water quality protection area in a manner contrary to section 11-3-29 of this title, the director shall rule that the water quality protection review is complete and shall note on the identification form that no further review is required.
If the director finds that a water quality protection area may be affected by the proposal, the director shall notify the applicant of what additional information is necessary to assess compliance with this section, indicating each of the water quality protection types that should be addressed.
A determination regarding the absence of one or more water quality protection areas by the director is not an expert certification. The presence of water quality protection areas is subject to possible reconsideration and reopening if new information is received. Development of materials to demonstrate compliance with this section and their review by the city, which may include referral to independent qualified professionals, shall be at the applicant's expense.
3. Required Geographic Area: The director may limit the required geographic area of a water quality protection report or geotechnical letter as appropriate if:
a. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the development site; or
b. The proposed activity will affect only a limited part of the subject site.
4. Water Quality Protection Review With Building Permit Submittal: A project submitting for a building permit does not need to submit a separate water quality protection identification form if all the above described information is found on the site plan for the building permit. If the director identifies a water quality protection area not addressed in the building permit, then the applicant shall complete a separate water quality protection identification form and submit any additional information as may be needed. (Ord. 12-04, 2-6-2012)
B. Water Quality Protection Compliance Permit:
1. An applicant for a water quality protection compliance permit must submit to the director a complete water quality protection identification form and site plan, as described in subsection A of this section.
2. Once an application for a water quality protection compliance permit is deemed complete, the director shall have thirty (30) days to respond to the applicant consistent with procedures identified in subsection A of this section. Decisions by the director may be appealed to the board of adjustment.
3. Water quality protection compliance permits shall be valid for eighteen (18) months. One 12-month extension may be granted from the planning department, provided the site plan and conditions have not changed. (Ord. 14-21, 1-5-2015)
C. Preliminary Water Quality Protection Determination: Prior to a detailed submittal for compliance with these regulations and the requirements of subsection A or B of this section, a property owner or potential purchaser of land may opt to request a preliminary determination from the city which will include a completed form, provided by the city, along with an application fee and the following information:
1. Vicinity map.
2. Site plan, drawn to a suitable engineering scale (such as 1 inch = 20 feet), showing:
a. Boundaries of the subject property.
b. A building improvement area (more than an exact building footprint, but less than the entire lot).
c. Name of adjacent rights of way.
d. Location of critical stormwater conveyances, rivers, streams, wetlands, or lakes on property or within two hundred feet (200').
e. Topography of the site at two foot (2') contour intervals, with slopes greater than ten percent (10%), if located within two hundred feet (200') of a lake, river, stream or wetland.
The director shall review the preliminary water quality protection determination application, shall conduct a site inspection and review other information available pertaining to the site to preliminarily determine if the proposal may have an effect on water quality protection areas. A written preliminary determination shall be issued by the city within thirty (30) days of a completed application. This written determination does not take the place of the requirements in subsection A or B of this section.
D. Determination:
1. Once a water quality protection report or geotechnical letter is deemed complete, the director shall determine whether the proposed activity complies with this section within thirty (30) days.
2. If the director determines that a proposed activity complies with this section, the director shall prepare a written notice of determination and identify any required conditions of approval, which shall be attached to the underlying permit or approval. This determination shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.
3. If the director determines that a proposed activity does not adequately mitigate its impacts on water quality protection areas or otherwise comply with this section, the director shall prepare written notice of the determination that includes findings of noncompliance. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not comply with this section.
Following notice of noncompliance, the applicant may: a) request mediation of the points of disagreement, and/or b) request consideration of a revised water quality protection report or geotechnical letter. If the applicant requests mediation, then the applicant and the director shall within twenty (20) days jointly select an acceptable mediator from a list approved by the director, and shall meet at least once with the mediator within thirty (30) days after the mediator has been chosen.
The mediator shall be a qualified professional for the relevant water quality protection area(s) unless the parties agree otherwise. The parties shall share the cost of mediation equally. If the parties do not come to agreement through mediation, the director, taking into account the mediator's recommendation, shall make the determination. If the applicant requests consideration of a revised water quality protection report or geotechnical letter and the revision is found to be substantial and relevant, the director may reopen the review and make a new determination based on the revised report.
4. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this section may be appealed according to, and as part of, the appeal procedure for the permit or approval involved.
E. Report Contents: If the applicant proposes impacts to streams, lakes, wetlands, or their standard buffers or setbacks, including reductions in buffer widths in exchange for restoration, the applicant shall submit a water quality protection report as described in this subsection, which shall include the following information:
1. The dates, names, and qualifications of the persons preparing the report, documentation of any fieldwork performed on the site, and a description of the methodologies used, including references and all assumptions made or relied upon.
2. For all wetlands on the subject property and all off site wetlands that could be impacted by the proposed action (using best available information if adjacent property access is denied) provide the following: hydrogeomorphic and Cowardin classification; characterization of vegetation, soils, and hydrology indicators; standard wetland buffer width; and wetland acreage estimates.
3. Description of the proposed activity and assessment of cumulative impacts to water quality protection areas and buffers from development of the site, including a description of the proposed stormwater management plan for the development and discussion of the potential impacts to wetlands associated with anticipated alterations to water quality and hydroperiod (pattern of fluctuations in water levels).
4. An analysis of site development alternatives including a no development alternative.
5. A description of reasonable efforts made to avoid, minimize, or compensate for impacts in the following sequential order of preference:
a. Avoid the impact altogether by not taking a certain action or parts of an action;
b. Minimize impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;
c. Rectify the impact by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;
d. Minimize or eliminate a hazard by restoring or stabilizing the hazard area through engineered or other methods;
e. Reduce or eliminate the impact or hazard over time by preservation and maintenance operations during the life of the action;
f. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments, on site, where feasible.
6. When mitigation to compensate for impacts is required, the following information shall be included:
a. Mitigation goals and objectives, in relation to the existing functions of the water quality protection or buffer and functions that will be lost because of the proposed development. For wetlands, this analysis shall use the Montana wetland assessment method, as developed and updated by the Montana department of transportation.
b. A review of the best available science supporting the proposed mitigation and a description of the report author's experience to date in restoring or creating the type of area or buffer proposed.
c. Measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this section have been met.
d. An analysis of the likelihood of success of the compensation project.
e. Details of the mitigation proposed, such as:
(1) The proposed construction method, sequence, timing, and duration;
(2) Grading and excavation details;
(3) Erosion and sediment control features;
(4) A planting plan specifying plant species, quantities, locations, size, spacing, and density; and
(5) Measures to protect and maintain plants until established.
These written specifications shall be accompanied by detailed site diagrams, scaled cross sectional drawings, topographic maps showing slope percentage and final grade elevations, and/or any other drawings appropriate to show construction techniques or anticipated final outcome.
If buffers are not currently vegetated with native plants, any proposed restoration shall attempt to create this condition unless site specific circumstances provide a compelling reason to do otherwise.
It is preferred that mitigation be completed prior to activities that will disturb streams, wetlands, or their buffers. If that is infeasible, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora.
f. A program for monitoring construction of the mitigation project and for assessing the completed project against its goals and objectives. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years 1, 3, 5, 7 and 10 after site construction), and how monitoring data will be evaluated to determine if performance standards are being met. A monitoring report shall be submitted to document milestones, successes, problems, and contingency actions of the compensation project. The mitigation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five (5) years or, in the case of mitigation for wetland alterations, ten (10) years. If performance standards are being met after these minimum periods, requirements for additional monitoring may be waived, if the director determines they are unnecessary.
g. Identification of potential courses of action, and any corrective measures to be taken, if monitoring or evaluation indicates project performance standards are not being met.
h. Financial guarantees to ensure that the mitigation plan is fully implemented and meeting performance standards. Guarantees shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city. The guarantee shall be in the amount of one hundred twenty five percent (125%) of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the water quality protection areas that are at risk, whichever is greater, and shall be separate from any other financial guarantees the city may hold for infrastructure purposes. Guarantees shall be released based on milestones included in the water quality protection report and the city's determination, in writing, that the standards bonded for have been met, to ensure that the required mitigation is fully implemented and demonstrated to function. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.
F. Wetland Mitigation Preferences: Mitigation to achieve compensation for lost wetland functions (e.g., removing fill, plugging ditches, breaking drain tiles, breaching dikes, etc.) shall be approached in the following order of preference:
1. Reestablishment of natural or historic functions to a former wetland, through restoration of physical, chemical or biological processes.
2. Rehabilitation of natural or historic functions of a degraded wetland through restoration of physical, chemical or biological processes.
3. Creation of wetlands on disturbed upland sites, where the postproject hydrologic regime can demonstrably support the proposed wetland plant community.
4. Preservation or protection of a wetland that would not be adequately accomplished through existing regulations.
5. Enhancement of vegetation or other characteristics of a wetland site to improve specific functions, such as filtration of pollutants or wildlife habitat.
G. Wetland Mitigation Ratios: When an applicant proposes to alter a wetland, the affected wetland acreage shall be replaced guided by the ratios established in the table below. The ratios apply to mitigation that is on site, timed prior to or concurrent with alteration, has a high probability of success, and is in kind (i.e., losses of wetland acreage shall be replaced by creation or restoration of new acreage; degradation of wetland functions shall be replaced by restoration or enhancement of new wetland functions, etc.). Ratios assume that the hydrogeomorphic (HGM) class/subclass of the wetland proposed as compensation are the same as the HGM class/subclass of the wetland impacted. Where these conditions do not hold, ratios shall be adjusted accordingly, as determined by the director, in consultation with the Montana department of environmental quality. Ratios for remedial actions resulting from unauthorized alterations shall be greater than set forth in the table, as determined by the director.
Type Of Wetland | Creation Or Reestablishment | Rehabilitation | Enhancement Or Preservation |
Fen | Not considered possible | 6:1 | 10:1 |
Other high value wetlands1 | 3:1 | 6:1 | 20:1 |
Other, nonexempt wetland | 2:1 | 4:1 | 15:1 |
Exempt wetland | 1.5:1 | 3:1 | 10:1 |
Note:
1. Includes wetlands with a forest community of Engelmann spruce and skunk cabbage; wetlands with plants identified as species of concern by the Montana natural heritage program or successor agency; and wetlands rated as category I or category II using the Montana wetland assessment method, as developed and updated by the Montana department of transportation.
(Ord. 12-04, 2-6-2012)