This section of the Code establishes standards for the protection and restoration of wetland areas.

5-2201A.

Purpose

This Section 5-22 is established to regulate development in wetland areas of San Miguel County to protect wetland areas and to protect the health, safety and welfare of the inhabitants of the County. These regulations seek maximum protection of wetland areas and all waters of San Miguel County by avoiding development activity whenever possible, minimizing unavoidable adverse development activity and mitigating the impacts of development on wetland areas.

5-2201B.

Applicability

This Section 5-22 applies to all wetland areas and wetland area buffer zones, and to all waters of San Miguel County. This section does not repeal, abrogate, or impair any existing federal, state, and/or local laws, easements, covenants, or deed restrictions. However, where this section imposes more restrictive regulations than those otherwise imposed, the provisions of this section shall prevail. The provisions of this section do not apply to normal and customary agricultural and ranching activities, including sale, transfer or conveyance of irrigation water.

5-2201C.

Definitions

Buffer Zone

All areas where development could impact wetland areas, extending at least one hundred (100) feet around wetland areas.

Mitigation plan

A plan approved by San Miguel County describing the restoration of wetland areas destroyed or otherwise negatively impacted by an activity.

Restoration

A human activity that returns wetland areas from a disturbed or altered condition with lesser wetland area acreage and/or functional values to a previous condition with greater wetland area acreage and/or functional values.

Waters of San Miguel County

All waters, including without limitation, lakes, rivers, streams (including intermittent streams), natural sloughs, wet meadows, natural ponds, impoundments and tributaries. Waste treatment systems presently in use, including treatment ponds and lagoons designed to meet the requirements of the Clean Water Act (33 U.S.C. § 1341), treated water distribution and storage facilities or treated water that otherwise meets the criteria of this definition, and water used for irrigation purposes are not waters of San Miguel County.

Water Dependent

Associated with activities that require Access, proximity to or siting within the special aquatics Site to fulfill their basic purposed (such as a marina, boat dock or boat launch).

Wetland

An area inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. Wetland areas include all waters of San Miguel County, all riparian areas in the County, and are presumed to include all areas identified in "An Ecological Characterization and Functional Evaluation of Wetlands in the Telluride Region of Colorado" (a 1990 report completed for the U.S. Environmental Protection Agency by David J. Cooper), including any amendments thereto, and any wetland areas in the County identified on wetland area maps filed in the County Planning Department.

5-2202A.

Adoption of Wetland Maps

Wetland maps are hereby adopted and may continue to be adopted and modified by Board of Commissioners resolution as part of this section, and shall remain on file in the San Miguel County Planning Department. The maps shall serve as guides only; all wetland areas must be verified on the ground. Wetland areas not shown on the maps but verified on the ground shall be protected as fully as mapped wetland areas.

5-2202B.

Modification of Wetland Area Boundaries

A potential developer shall have the burden of showing that any area delineated on County wetland maps and/or on accompanying reference material should not be classified as a wetland. Wetland boundaries may be modified at the potential developer's expense through the performance of a wetland boundary determination by an expert wetland consultant and established on a plat executed by a Colorado licensed surveyor using the wetland definition in Section 5-2201 C.

5-2202C.

Boundary Modification Application Review

A potential developer desiring to modify a wetland and/or buffer zone boundary must submit an application for such modification to the County for review under the Two-step Process described in Section 3-6 of this Code. If such application is not approved by the Board of Commissioners, the applicant and the Board of Commissioners may attempt to set mutually agreeable wetland area and/or buffer zone boundaries, relying on the services of an expert wetland consultant and, if necessary, a Colorado licensed surveyor, approved by the Board of Commissioners and paid for by the applicant.

5-2203A.

Administrative Review

No Development activity shall be allowed within any Wetland or Buffer Zone without a Wetland Special Use Permit issued in compliance with the terms of this section. All activities that are not permitted by Special Use Permit shall be prohibited.

A Wetland Special Use Permit may be issued in accordance with the Administrative Review Process described in Section 3-4 of this Code when the applicant demonstrates to the County's satisfaction that the proposed Wetlands Development satisfies at least one (1) of the following standards/criteria:

I.

The proposed development is required to provide protection against property loss and/or damage.

II.

The proposed development will increase the size and improve the quality of Wetlands, aquatic, and/or riparian habitat, and enhance ecosystem functioning such as improving water quality, wildlife habitat and biodiversity.

III.

The proposed Development is associated with residential Development (construction of Access, utilities and/or a home or homes).

IV.

The proposed Development is associated with a Minor Facility Administrative Review process for Oil and Gas Exploration and Development pursuant to Section 5-2603.

5-2203B.

Two-Step Special Use Permit Review

A potential developer desiring to develop within a wetland or within one hundred (100) feet of a wetland must submit an application for approval of such activity to the County for review under the Two-step Special Use Permit Process described in Section 3-6 of this Code. However, when such proposed development comprises construction of access, utilities and/or a home or homes on parcels final platted or otherwise legally created prior to June 4, 1992, such application shall be reviewed in accordance with the Administrative Review Process described in Section 3-4 of this Code. Major Oil and Gas Facility applications shall be processed in accordance with this Section. Applications for Solar Energy Systems shall be processed in accordance with Section 6-2 of this Code. No development activity shall be allowed within any wetland or buffer zone without a Wetland Special Use Permit issued in compliance with the terms of this section. All activities that are not permitted by Special Use Permit shall be prohibited.

5-2203C.

Issuance of Wetland Special Use Permits

A Wetland Special Use Permit may be issued only if the applicant has shown at least one (1) of the following:

I.

The proposed activity is water-dependent;

II.

The proposed activity is necessary to achieve access to property, and no other access route avoiding wetland and buffer zone areas is technically feasible;

III.

Denial of the permit sought would result in denying the landowner all practical, reasonable and/or economically viable use of the subject property;

IV.

The proposed activity meets the definition of Essential Services in Article 6 of this Code and could not reasonably be located elsewhere; and

V.

In the case of development proposed solely in a buffer zone, the proposed land use would not adversely affect the adjacent wetland area.

5-2203D.

Criteria for Review of Wetland Special Use Permits

In reviewing applications for Wetland Special Use Permits, the Board of Commissioners shall apply the following criteria:

I.

Avoidance — Development activity within a designated wetland area should be avoided whenever possible; and

II.

Minimization of Impacts — The impacts of unavoidable development activity should be minimized by including appropriate project design modifications, control techniques or other conditions deemed appropriate by the County.

5-2203E.

Impact Mitigation for Wetland Uses and Activities

As a condition of Wetland Special Use Permit approval, or in the event of a violation of any terms in this Section 5-22, the Board of County Commissioners may require a mitigation plan. The plan shall require the applicant or developer to engage in the restoration of wetland areas in order to offset, in whole or in part, the wetland losses resulting from an applicant's proposed or violator's historic actions. Approval of such plan by the Board of Commissioners shall not constitute an alternative to compliance with the standards set forth in this Section 5-22.

5-2203F.

Submission Requirements

An applicant for a wetland special use permit must submit an application in accordance with Section 4-2 of the Code. In addition, an applicant must submit evidence of compliance with the standards described in Sections 5-2203 A, B and C, and the Board of County Commissioners may require additional information as appropriate.

(Res. No. 2024-40, § 11, 9-18-2024)

5-2204A.

Inspection of Wetland Area

For the purpose of carrying out the provisions of this Section 5-22, the Board of County Commissioners or its designee may enter upon private land in a reasonable and lawful manner during daylight hours for the purpose of inspection of any wetland area or buffer zone area proposed for development by an applicant for a Wetland Special Use Permit. If denied access for these purposes, the Board of County Commissioners may inspect the subject property after following an appropriate legal process.

5-2204B.

Wetland Restoration

In addition to other remedies prescribed by this Code, the Board of County Commissioners may order wetland restoration measures for the damaged or destroyed wetland by the party responsible for the violation in accordance with Section 5-2203 E. If the responsible party does not complete such measures within a period specified by the Board of County Commissioners, the Board of Commissioners may restore the affected wetland at the cost of the responsible party.