Planning, Zoning, and Water Problems: How Can We Solve Them?

By Matthew Frank, 10-25-07

There is an enormous amount of confusion and frustration in the fast-growing Western Montana counties over planning, zoning, subdivision, regulations and water resource issues. Thursday, at NewWest.Net’s second annual Real Estate and Development in the Northern Rockies conference in Missoula, a few local experts combined to sort out the chaos and suggest ways to improve the processes.

Alan McCormick, an associate at the law firm of Garlington, Lohn & Robinson in Missoula with a particular emphasis on development permitting, explained Montana’s growth management system and what’s wrong with it. Here’s a quick rundown of some of the ideas he shared with the audience:

• How do we manage growth in Montana? We look at the statutes, and the grand daddy is the Growth Policy Act. Altogether, “We have five major acts and a whole bunch of little acts that deal with the specifics.”

• People say the reason growth and management is out of control is because we don’t have enough tools. “I’m here to tell you we got the tools,” he said. “We have more tools than we know what to do with.”

• Then why isn’t growth management working well? Because the acts don’t talk to each other, they aren’t integrated. “The roles are not well defined, procedures are cumbersome, and every two years (in the Montana Legislature) we figure out how to do it again.”

• “We are spending an incredible amount on resources to figure out what the process is, and we’re not figuring out what the substance is.”

• How do we fix the problem? “I’m not entirely sure, but this room is filled with people involved in the process.”

• McCormick offered a couple big-picture solutions: “Stop the band-aid approach” (an example being the reliance on citizen petition zoning), and foster a “change of attitude.” “The collaborative process works much better,” he said.

• “We can do it proactively, or we can let nature take its course, so to say.”

Next, Mary Sexton, of the Montana Department of Natural Resources and Conservation, talked about the state’s water and wildfire issues. Here are some of the things she had to say:

• Water resources in Montana belong to the state, and people have rights to use that water. But we need to make it more clear who has the right to use the water.

• Montana is in the midst of a substantial drought, and we’ve lost about a year and half of water. And this is coinciding with rapid residential development and its water demands.

• There is a growing problem with exempt wells, which essentially are free water rights. The number of exempt wells has increased with the number of building lots in Montana because it’s much easier and less costly than going through the permitting process. Exempt wells were initially intended for more isolated use, not necessarily subdivision development. “It’s a challenging issue: Where is it appropriate to use exempt wells. Should there be a permitting process?”

• A 300 lot subdivision uses approximately the same amount of water as 160 acres of alfalfa.

• There has been a substantial increase in wildfires: almost 2 millions acres have burned in the last two years in Montana. And growth in the wildland-urban interface is leading to additional challenges. “Whose responsibility is it to take care of your house when it’s threatened?” To address this problem, she recommending adopting best management practices into county growth and zoning policies.

• The state faces many water and fire challenges, but there’s hopefully a solution. “We need to ask ourselves, who should be at the table when making these decisions?” Most importantly, What are the economic, social and environmental impacts of our water and forest problems and policies?

Finally, Michelle Bryan Mudd, director of the Land Use Clinic at the University of Montana School of Law, shared ideas about the often disparate policies that govern land and water use, including the following:

• Why did land and water use policies turn out to be two separate things? Water policies in the West originally evolved from the need to take water away from where it naturally flows (i.e, for mines) and it led to the prior appropriation doctrine—basically first come, first served.

• The result of this was that water become detached from the land. Consumption and movement became the most important thing. When the West became settled, land use planning came along and suddenly, a need to regulate how to use land. The focus was on human activity, and thus a different legal perspective from that of water.

• State control of water and local control of land have created problems. And there are not only different legal regimes, but different cultures.

• The West has a legacy of sprawl development, which encourages high intensity of water use.

• How do we begin making changes in our own communities? Look at local processes.

• There are models that help: In California, the Urban Water Management Planning Act is forcing communities and developers to think about water use, and to develop plans for the next 20 years. In Hawaii, they’re implementing the public trust doctrine through regulations that establish priorities for future water use, while assuring existing rights.

• What can we do in Montana? Local government has the power to decide a community water plan. Within a growth policy we can put together a plan for what a community thinks its water capacity is. Connect supply capacity to land use models.