Big Sky Rivers Act Would Create Streamside Setbacks on 10 Montana Rivers

By Peter Metcalf, 2-18-09

When it comes to passing streamside setback legislation in Montana, river advocates hope the third time’s the charm.

House Bill 455, also known as the Big Sky Rivers Act would effectively limit new housing development along select major rivers in Montana. The House Local Government Committee will hear the legislation Thursday. 

The bill would establish a 250-foot setback on all or parts ten rivers in Montana, including the Yellowstone, Gallatin, Madison, Jefferson, Smith, Missouri, Clark Fork, Blackfoot, Bitterroot and Flathead rivers. These 10 rivers were selected for their habitat and recreation values and intense development pressure.

Within the buffer zones, only new residential development would be restricted. All other development and land use activities, such as new outbuildings or cattle grazing, would be permitted and existing homes would be grandfathered. The bill also includes a variance procedure that would allow landowners to still develop if their developable land falls fully within the buffer zone. 

Unlike past versions of the bill—both of which failed in the 2005 and 2007 sessions—this year’s bill does not establish a regulatory framework at the state level. Instead, it gives affected counties the authority to determine how to best implement what the bill calls “streamside management areas and vegetated buffers.”

“The power in this bill is held by local governments, including the implementation,” said Scott Bosse, director of aquatic conservation for the Greater Yellowstone Coalition, one of the lead conservation groups behind the legislation. 

Under provisions of the bill, counties would maintain power to adapt the width of the streamside management area to local conditions so long as the new designation maintained the bill’s protection objectives. For instance, in places where a river glides through a bedrock canyon or where a river’s 100-year flood plain does not extend 250 feet, the buffer zone could be scaled down. 

Counties would have until January 2011 to create and implement their regulations. 

The bill’s opponents, like the Montana Building Industry Association, maintain that like past versions, this bill is too top-down in its approach.

“This bill basically says you have to do this and here are the guidelines,” said Dustin Stewart, executive director of MBIA. “This bill absolutely diminishes local control.”

Despite early opposition, however, proponents hope compromises made in the bill will this session get it bipartisan support and eventually, get it to the Governor’s desk.

For instance, this year’s bill is far less reaching in its scope than previous attempts, which covered far more stream miles, streams and stream categories as well as regulated more development and land use activities within their proposed buffer zones. 

“The only thing (this bill) is aimed at is new development,” said Brianna Randall, water policy director for the Clark Fork Coalition, another group behind the legislation. 

The key motivation behind the proposed setbacks is the rapid increase in the number of new houses—particularly large ones—and rural subdivisions along Montana’s rivers in recent years and their impacts on water quality, fish and wildlife habitat and increased risks associated with flooding.

“The rate at which development was occurring along Montana’s rivers in the last 20 years was shocking and it was starting to have a significant impact,” Bosse said. “Streamside areas in Montana provide a disproportionate amount of fish and wildlife habitat in Montana. Once you allow unrestrained development to occur in river corridors it marks the beginning of the end for the river system.”

Rivers and their riparian corridors require periodic floods and channel migration to maintain their health and vigor. As riparian corridors are developed they lose the ability to renew themselves and provide fish and wildlife habitat. 

“The measures in the bill protect these areas and ensure good habitat for wild trout,” said Ron Aasheim, spokesman for Montana Fish Wildlife and Parks.  FWP will testify on the technical merits of the bill, as it does on all bills that relate to its mission manage fish and wildlife. 

The loss of vegetation associated with riparian development deprives trout of thermal cover and security, reduces nutrients to the river system and can increase sedimentation from surface runoff. Alterations to the stream channel can impact spawning, rearing and foraging habitats.

But it’s not just fish that will benefit from intact riparian corridors. These corridors provide critical wildlife habitat as well, Aasheim said.

While conservationist groups want to protect fish and wildlife habitat and the recreational experiences such habitat offers, they also see another pragmatic reason for streamside setbacks, protecting people and property from flood related losses.

Home owners, quite understandably, do not like unchecked floods in their kitchens or the erosion of their riverbanks and often turn to rip rap as a solution. 

Such defensive measures only compound flooding and erosion issues for downstream property owners. Currents striking a hardened bank accelerate. The swifter current then increases the rate of erosion of unprotected downstream soils. Faced with the physical loss of their property, these owners place rip rap too and the process repeats itself.

“In reality (this bill) is trying to protect private property from flood or from neighbors doing something upstream that impacts your property,” said Randall. 

But where some see a bill protecting private property, others see an egregious violation of private property rights. 

“This bill is a takings of private property,” said Dustin Stewart, the executive director of the Montana Building Industry Association. By his association’s internal calculations, he estimates the regulations could cost landowners $220 million dollars in lost value. 

Stewart takes issue with the bill’s grandfather clause, which he says is unclear in its application to already approved but not yet developed projects, and its variance procedure. 

He also says the bill is not an attempt to protect water quality or private property value, but rather a blatant attempt to protect “private recreation.”

If it were about water quality, he says, the bill would not exempt cities from the regulations and would have included all the downstream miles of a given river, like the Yellowstone.

“So it’s alright to build a house on the river or a restaurant on the river in Great Falls, but it’s not okay outside Ulm?” Stewart asked. 

The MBIA would like to see a just compensation clause added to the bill. Whichever government enforces the bill would have to pay landowners difference of what they could have received at market if the regulation were not enacted. 

But figuring out the financial impact of buffer zones to a piece of property is not so straightforward, said N. Clark Wheeler, an accredited rural appraiser with Norman C. Wheeler and Associates in Bozeman. 

“To just say that as a matter of fact properties will suffer is probably an overstatement,” said Wheeler, who specializes in ranch size parcels of 160 acres or greater and said his expertise does not relate to individual lots or subdivisions. 

Markets also tend to adjust to new situations, he said. Take conservation easements for example. Appraisers expected easements, as they are designed to do, would significantly drive down property values. But so many properties have easements and demand for these properties is high, so the property values have not declined to the degree expected.

In the case of riverfront property, new buyers are less concerned about where they can site their home than that they own access to the river.

“The value’s in the fact that you got riverfront. That’s what creates the value. Whether you can build within 50 feet or 250 feet isn’t the value,” Wheeler said.