Mitigation Standards

[Jim]

Looking back at the tools recommended for consideration by the OLWG in
2006, one of the top tools to be considered was "Subdivision
regulations with mitigation requirements" which briefly stated
"Develop specific mitigation requirements within subdivision review
for Missoula County, focused on mitigating the loss of wildlife
habitat and productive farmland. Create a fund with mitigation fees
that could be used to compensate for loss of specific resources."

In addition, the first recommendation in the recently released Sub
Regs Assessment report states:

"Tackle the Difficult Job of Defining Impacts and Establishing
Acceptable Mitigation
Establish working committees to recommend definitions of impacts and
acceptable methods of mitigation for at least the key subjects of:
a. agriculture and agricultural water user facilities; and,
b. natural environment, wildlife and wildlife habitat.
The committees should contain a cross section of the community with
expertise related to their assigned subject and key stakeholders who
are affected by the issue, but be small enough to work efficiently.
The committees would review methods used in other communities and
prepare recommendations for consideration by the Planning Board and
County Commissioners. County staff could provide technical support to
the committees."

And certainly our subcommittee is in an ideal position to serve as one
of these working committees.
Let's do it!

[Carolyn]

I agree, Jim, mitigation should be one of the top tools this committee
should recommend to OLC. Developing the definition of mitigation for
this purpose will require that the impacts are also well-defined and
defensible. It would be an excellent process for the County to
undertake in my view, something I have been advocating all along (not
to sound like a broken record)!

After giving a great deal of thought to the conversation we had at the
last OLC meeting regarding the concerns of ag landowners, I would like
to throw out an idea to the committee for discussion. A few years
back there was a trend by ag landowners, particularly in eastern MT,
to work with real estate brokers that specialized in conservation
sales. The landowner would place a conservation easement on a
property and also break off 2 or 3 - 10 (+-) acre parcels to sell to
conservation buyers. The buyers would understand that they were buying
a parcel of property that would likely always be surrounded by/
adjacent to a working ranch or farm. For many buyers this was
desirable and made the property more valuable, somewhat like living
next to public land/open space. The landowner benefited from both the
conservation easement and the sale of the parcels.

My thought is what if we tried to make this type of system work on a
larger scale within the county. Specifically, could we develop
criteria and incentives that would allow the landowner to directly
benefit from a smaller level of carefully planned rural development,
rather than the current system that encourages larger development that
is often looking for a larger profit margin? Would this type of
program provide sufficient incentives to place conservation easements
on the remaining ranch/farm while also allowing for some rural
residential development? Obviously, this would require a great deal
of thought and planning but it seems like the right framework could be
developed. There might even be an additional role for land trusts to
help with the design and planning for the landowner.

If this could be further coupled with a future farmer/rancher loan
program that would provide incentives (i.e., lower interest rate,
etc.) to purchase properties (if they are for sale) in the above
program above non-program properties, it seems like it might be an
attractive overall package for a landowner to participate.

Maybe this has been considered before but isn't feasible for reasons I
haven't considered. Any thoughts?

Carolyn

[Jim]

Your comments, Carolyn, provide an intriguing idea on a specific
suggestion which might be included in a recommended agriculture
mitigation policy. Thinking that it might be advantageous to have
examples of specific policies which are in use elsewhere, I asked
Karen Hughes if it might be appropriate to request that Professor Mudd
bring along some examples for distribution following her presentation
in two weeks. In her response which follows, I have inserted numbers
preceding two questions which our committee should probably discuss.

"Michelle is just finishing up the Law Clinic's report that includes
citations for a number of examples they pulled from their research.
The report includes hotlinks from the citations to the actual codes
and documents so I think that will probably give you a good starting
point in terms of reviewing examples. We can then print out examples
if folks feel they really need certain ones in hardcopy form. We'll
be sending out the report early next week so everyone on the Open
Lands Committee will have 2.5 weeks to review before the
presentation. Of course we can provide hardcopies of the report as
well for anyone who would prefer that format.

As for the Committee's work, I think it might be good to wait and
review the report (and possibly for the presentation) and make sure
OLC as a whole is on board with where to head next before spending a
lot of time delving into other specific policy examples. One question
the subcommittee might want to consider, and perhaps you already have,
is how detailed the Coordination subcommittee or OLC wants to get with
its recommendations. (1) Does the subcommittee/OLC want to provide
guidance on general policy direction to the Commissioners or recommend
specific policies and actions? Or, does the subcommittee want to
suggest a general approach to OLC and then suggest the subcommittee
should delve into specifics? I'm not entirely sure how detailed OLC
wants to get in their recommendations back to the Commissioners. I
have a hunch that if OLC decides it wants to delve into recommending
very specific policies, that the group should probably check in with
the Commissioners regarding general direction and approach before
moving into researching specifics.(2) Finally, are there other
approaches besides subdivision mitigation the Coordination
subcommittee and OLC might want to look at recommending for additional
research and consideration? If so, the subcommittee/OLC may want to
first do a cursory overview of a full range of approaches and make
recommendations, before delving into details. Alternatively, the
subcommittee/OLC may not want to delve into the details and instead
decide to make general recommendations about approaches and how they
should be further researched and considered by the County (including
what role if any OLC or its subcommittee might want to play).

One thing I think you'll notice from the Law clinic's report and
Michelle's presentation is that communities that have well-rounded
successful agricultural protection programs incorporate incentives and
other measures besides land use policy and regulations. However, the
other approaches communities have taken in order to develop their
program are not really covered in the Clinic's report. It might be
worth looking at what other measures should be considered for
protection of agriculture besides Growth Policy, Zoning, and
Subdivision Regulations."

Thus it seems appropriate that we continue to research mitigation
options but it may be wise to hold off until hearing Dr. Mudd's
presentation before bringing forth anything on the subject to OLC
until the following month. I like Karen's suggestion that following
the presentation we obtain feedback from OLC making sure we have their
support in the further pursuing of this topic.

What do you think?

[Jim]

Having read the Law Clinic report, it would seem that it certainly
supplies enough information that after hearing the presentation next
Wednesday, OLC will be ready to decide if it wants our sub-committee
to continue on our path of further researching policies relating to
mitigation and sub-division review. At the end of the discussion
following the presentation. let's suggest that we go forward with
their endorsement. Sound like a plan?

[John DiBari]

Some of you may be familiar with a section of the National Environmental
Policy Act (NEPA) that refers to the mitigation hierarchy. The mitigation
hierarchy is a very simple concept that relates to projects that have an
environmental impact. It goes like this: avoid, minimize, restore, offset.
Those effects that can be avoided should be avoided, if all effects can't be
avoided the remaining effects that can be minimized should be minimized, if
all remaining effects can't be minimized then those areas that can be
restored should be restored, and finally any impacts that can't be avoided,
minimized, or restored must be offset.

I propose that this committee draft a statement for the full committee to
review and approve that establishes the framework of the mitigation
hierarchy as the general policy of the county when it comes to impacts to
agriculture and agricultural land.

Follow up steps would be to think about and draft recommendations regarding
implementation of the mitigation hierarchy policy framework -- like, what
exactly restoration means and what counts as restoration, how to handle
offsets -- e.g., on-site vs. off-site, is there a graduated scale associated
with minimization...

I think we'd be on very strong ground to recommend such a policy framework
as it is a foundation of national legislation and may even be embedded in
state legislation (i.e., MEPA).

Thoughts?

John