Mark Twain, as always, said it best: “Whiskey’s for drinking; water’s for fighting.”
Flathead County’s proposed subdivision regulations regarding stream setbacks have plenty of people in a fighting mood, but land-use specialists maintain setbacks are a vital and low-cost approach to maintaining valuable riparian areas.
“As they are stated, they are illegal,” said Russ Crowder, chairman of American Dream Montana. “If they are adopted in practically any form I’ve heard proposed, we will be filing a lawsuit.”
Crowder said that peer-reviewed scientific studies are required to enact the setbacks based on his reading of state law, which says that if local regulations are more stringent than state regulations or guidelines “the written finding must reference information and peer-reviewed scientific studies contained in the record that forms the basis for the governing body’s conclusion.
“The written finding must also include information from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed local standard or requirement,” the law states.
“Of course they aren’t going to follow the law,” Crowder said.
At a meeting on Thursday night hosted by the Flathead Basin Commission, Stephanie Kruer, a nationally known attorney who specializes in land-use law, said that Flathead County’s setback regulations would survive a legal challenge, especially if the lawsuit charged a taking of private-property rights.
“A taking is not where you wanted to build a two-story house, and now you can only build a one-story house,” Kruer said. “A taking is a total deprivation of all economic use. There will be a lot of rhetoric with people saying setbacks are an illegal act of government, but takings claims just aren’t applicable in this case.”
The proposed regulations, which only will affect new subdivisions, call for different setback and vegetative buffer distances depending on the water source.
For the Flathead River and its three forks, Stillwater River, Swan River and Whitefish River, the setback is 250 feet with a buffer of 100 feet. On Ashley Creek from Smith Lake to the Flathead River and the Pleasant Valley Fisher River, the setback is 200 feet with a 75-foot buffer. All other streams identified on the latest U.S. Geological Survey maps will have a setback of 60 feet with a buffer of 50 feet.
SETBACKS deal with how close a structure can be built to the river, and the vegetative buffer keeps people from placing their lawn up to the river banks. The loss of woody vegetation allows the river or stream to speed up, which increases the water’s ability to do damage to property downstream.
Paul Hansen, a former University of Montana professor, called setbacks a vital and low-cost approach to maintaining valuable riparian areas.
Hansen, who spoke during the presentation, offered some startling statistics about the costs associated with cleaning up spoiled water sources. A 6,000-acre wildlife refuge in California recently looked at how it could restore ruined riparian areas upstream, and the price tag came to more than $6 billion.
“We can’t afford to do that,” Hansen said. “We can’t continue to spend huge amounts of money to solve problems we have created. It costs 10 cents on the dollar to be proactive than to fix problems on the other end.”
According to Hansen, Montana is in a unique position because the state still has about 73 percent of its wetlands left compared to California, where just nine percent remain. By enacting setbacks, vegetative buffers and keeping development out of flood plains, Hansen said communities can reduce flood damage and increase property values.
“Think of a river and its flood plain as one unit,” he said. “It’s called flood plain and not a drought plain for a reason. Building in a flood plain is like setting up your tent on the highway just because there are no cars coming at that particular moment and then being surprised when you get run over.”
Kruer and Hansen both contend that the science is available to show that setbacks work. Other areas such as Beaverhead County have successfully enacted setbacks. Madison County requires 500-foot setbacks along the Madison River and 250-foot setbacks along other rivers.
“No one has to lose,” Hansen said. “It’s a win-win for everybody.”
Reporter Michael Richeso may be reached at 758-4459 or by E-mail at mricheson@dailyinterlake.com
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