Mountain chickadees dart into shrubs beneath a vista of the Bridger Mountains at the Indreland Audubon Wetland Preserve in 2021.
City commissioners voted Tuesday in favor of new codes bolstering protections for wetlands in Bozeman.
The codes change how development can occur on land that contain wetlands and watercourses. It broadly encourages less impacts to those resources and, if impacts are unavoidable, pushes for mitigation work to occur on-site or as locally as possible.
The code changes have been in the works for years and have been supported by local advocacy groups, who also pushed the city to go further with some of the code language.
"To protect is way less expensive than to restore and replace," Lilly McLane, with the Gallatin Watershed Council, said during public comment. "Right now we're paying for our past impacts. We've got impairments. Our fishery is threatened that underpins our economy."
The code changes come after a U.S. Supreme Court decision from 2023 removed federal protections from wetlands not connected to a body of water classified as a "waters of the U.S."
The decision means about 80% of the wetlands in the city are still under U.S. Army Corps of Engineers jurisdiction, Bozeman Transportation and Engineering Director Nick Ross said. The remaining 20% would not have any protections without a local city code.
Any developer wanting to impact wetlands will be required to mitigate the damage, often by purchasing mitigation credits at a wetland "bank" elsewhere.
The code changes approved Tuesday set a prioritization list for how those should be mitigated, starting with on-site if technically feasible, then going to a wetland bank within the East Gallatin or Gallatin river watersheds, and lists purchasing from a regional wetland bank as the last preferred option.
The closest wetland bank to Bozeman is in Twin Bridges, but the Sacajawea Audubon Society is in the final stages of establishing a local bank at the Indreland Audubon Wetland Preserve on Bozeman's east side.
Ross said the city can't tell the Army Corps of Engineers how to handle the mitigation process for wetlands under its jurisdiction.
"We very much are going to the greatest extent we have possible to encourage the purchase of wetland bank credits here in town," Ross said. "We do not believe we have the legal authority to demand that (the Corps) follow our prioritization."
Under the approved codes, developers are required to hire a wetlands professional to certify whether wetlands or watercourses are on a property and to have a licensed surveyor map those resources.
Developers will also be required to include a narrative description of how they tried to avoid impacting wetlands and watercourses, then how they minimized any impacts and, finally, how they plan to mitigate the impacts.
The code changes also encourage developers to integrate watercourse setbacks or wetlands with parklands and open spaces and apply a 50-foot setback to all wetlands adjacent to watercourses. The code also protects wetlands under 400 square feet when they are part of a mosaic of other wetlands.
Though the draft code proposed a minimum buffer of 10 feet from wetlands, commissioners approved an amendment upping it to 25.
As the code rewrite has worked its way through the process in recent weeks, people have pushed the city in public comments to amend the draft code by including setback requirements for isolated wetlands, similar to the requirements proposed for wetlands adjacent to watercourses.
Representatives from the Gallatin Watershed Council also suggested the city amend the draft to expand setbacks around streams and require a risk assessment for when developers want to deviate from code.
Ross and City Manager Chuck Winn both recommended the city could consider adding some of those policies in the future.
Ross said he views the code as an improvement over the city's current policy.
"The basis of our proposal tonight is really based on experience including projects -- that I don't know if I would go so far as to say have fallen through the cracks -- but ones for which we would have loved to have the code in front of us tonight to implement in review," Ross said. "We see a deficient code in front of us and we want a better one to apply to the work that we do every day."
All five commissioners supported an amendment to change the minimum buffer from the suggested 10 feet to 25 feet and said several other suggestions from public comment should be considered later.
"I would encourage us not to let the perfect be the enemy of the good, and I think we have a good ordinance before us this evening," Mayor Terry Cunningham, who pushed for the wetland code rewrite to be a city priority in 2021, said before the vote.
Commissioners voted unanimously in favor of the code changes.