Big Sky Rivers ACt

Measure to Regulate Development Along Montana Rivers Likely Dead

By Courtney Lowery, 3-16-09

	The dramatic cutbank at Mallard's Rest demonstrates the erosive power of the Yellowstone River, particularly when it encounters land without supporting vegetation. Homes are being built at the edges of similar bends in the river. Photo by Chris Lombardi. For more on this and other projects on the Yellowstone, check out Hal Herring's 2006 story: Wild Rivers and Riprap: The Case of the Yellowstone.

The Big Sky Rivers Act, a bill that started out with bipartisan support and held high hopes for those who have worked for years to develop workable protections for the state’s waterways, is likely dead in the Montana Legislature. Although the bill had four Republican co-sponsors, it went down to defeat in a party-line committee vote in the face of steadfast opposition from real estate interests and property rights advocates.

House Bill 455 would have created 250-foot setbacks for new development on 10 major rivers in Montana, including the Yellowstone, Gallatin, Madison, Jefferson, Smith, Missouri, Clark Fork, Blackfoot, Bitterroot and Flathead —rivers with the highest habitat and recreation value and also the highest development pressure. A critical section of the bill gave local authorities the ability to make the setback bigger or smaller or make other changes to the baseline state rules to take local conditions into account - supposedly the key sticking point for those who had opposed setback legislation in the past.

But the bill, sponsored by Rep. Michele Reinhart, D-Missoula, failed on a tie vote in the House Local Government committee last week. All nine Republicans on the committee voted against it, including Victor Rep. Gary MacLaren, who had previously signed on to the bill. The bill was heavily opposed by property rights advocates in MacLaren’s home county in the Bitterroot who spearheaded a successful campaign to overturn Ravalli County’s growth policy in last November’s election.

Supporters of the Big Sky Rivers Act, including the Clark Fork Coalition, Montana Audubon, the Governor’s office, Fish Wildlife and Parks, the Greater Yellowstone Coalition and Trout Unlimited, said the bill would protect Montana waterways for habitat and recreation, create a more dependable framework for local governments and protect homeowners against floods. (Read Peter Metcalf’s story on the bill, which outlines the reasons behind the bill, here.)

Similar bills failed in 2005 and 2007, but supporters thought this was the year it had a shot for several reasons: First, it was limited by only including the big 10 rivers, something critics of previous bills liked. Second, it only applied to new residential development and still allowed other uses like new outbuildings or cattle grazing. Also, existing homes would be grandfathered and it gave automatic variances for certain noncompliance. Finally, it put the regulatory decision making process at the local level.

Four of the 10 cosigners of the bill were Republicans, and before the committee took executive action, there were more than 50 amendments to the bill, signaling the kind of compromise that went into it.

The local control was one of the biggest selling points, but in the end opposition to the bill came from a fundamental resistance to any statewide regulatory control over setbacks.

That’s what it was for the Montana Association of Realtors, said Glenn Oppel, the group’s governmental affairs director.

“Land use regulations should be implemented on the local level,” he said. “In order to maximize landowner participation, it has to be at the local level.”

He also said, “If the state mandates that the county do something, I don’t care how you couch it,” he said. “No matter how you structure the mandate, it’s still a mandate.”

Many real estate groups at a local level, however, have also consistently opposed any local efforts to regulate streamside development.

One thing that ended up swaying MacLaren, he said, was that the bill did not exempt the 11 counties affected by the bill that already had streamside setback plans in place. And, he echoed Oppel in saying that the push has to come from the local level.

“I think we need that protection for the rivers, no doubt about it,” he said. “But it’s got to originate from the counties.”

Many of MacLaren’s constituents, from Ravalli County, lined up during the February hearing to oppose the bill, some of them calling the bill anti-private property, a unncessary statewide mandate and “takings” legislation.

Ravalli County in November voted down its county growth plan and streamside setbacks, something several opponents brought up at the hearing and something MacLaren took into consideration when voting against the bill.

“Voters in my county just in November rejected streamside setbacks, so I didn’t feel like I could support it,” he said.

There was some support, however, for the bill in Ravalli County. Several residents and landowners did come to Helena to support the bill and three of the five county commissioners backed it as well.

One, Jim Rokosch, said the bill “provides the balance between local control and a stewardship of shared resources of the state of Montana.”

“This is an issue that has been languishing for 40 years or more in terms of a wise balance of consideration for public resource, public safety, public health and private property rights,” he said at the hearing.

Rokosch said county commissioners are “hard pressed to actually have a clearly defined authority at this point to move forward and strike that balance” between private property rights and “the public responsibility we have to wisely use our resources and consider future generations.”

Before the committee took a vote last week, Rep. Bob Ebinger, D-Livingston, spoke in favor of the bill, saying it would help Park County protect the Yellowstone River (which has a long history of struggles with development) and property owners along it and that it would finally establish some consistency across county lines.

Several of the Republicans said it was a good idea, but not something they could support and others decried it as a “takings” bill and as a solution waiting for a problem to happen.

But ultimately the debate over private property rights was insurmountable. At the hearing in February, opponent after opponent railed on it.

One, Ken Donovan, even called it, the “largest land grab since statehood and the formulation of the Indian reservations.”

A bill stuck in committee on a tie vote has little chance of seeing legislative action again. The only way to revive it is to “blast” it out of committee and on to the House Floor, and to do that, it would need the support of at least 60 members. Brianna Randall, the water policy director for the Clark Fork Coalition, one of the groups behind the legislation, said a blast isn’t probable at this point, considering the entire Legislature is likely be tied up with budget issues in its final six weeks of work. 

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