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Conservation District asserts jurisdiction over revetment

The Bitterroot Conservation District has given the landowners of this property until the next high water event to clear this concrete rubble away from the river bank and the remove the material that has already fallen into the river.

The Bitterroot Conservation District has given the landowners of this property until the next high water event to clear this concrete rubble away from the river bank and the remove the material that has already fallen into the river.


By Michael Howell

The Bitterroot Conservation District made what its attorney called “a precedent setting decision” last week when it decided that a 310 permitting complaint submitted by the Bitterroot River Protection Association was “a valid complaint.” The complaint concerned about 1,000 feet of concrete rubble and pieces of metal that is falling into the Bitterroot River north of Woodside as the river undercuts the bank upon which it is now perched.

According to Helena Attorney Don MacIntyre, legal advisor for the Montana Association of Conservation Districts, it is a situation that is facing Conservation Districts across the state as landowners attempt to avoid the permitting processes involved in riprapping a river bank by placing a long wall of piled up materials, usually stone or pieces of cement or some other materials, or burying the material in a trench away from the river bank and outside the jurisdiction of governing agencies, in the hopes that when the river bank erodes to that point it will be stopped by the revetment.

The Bitterroot River Protection Association filed a complaint about the situation with the Conservation District last June.

MacIntyre told the District Supervisors that the issue has been around for a while. He said it was a gray area in the law and gave them a few options to respond to the complaint. He said one option would be to do nothing, because the revetment was placed outside the streambed and outside the board’s jurisdiction and there is a “loophole” in the law that the legislature needs to correct.

Another option, he said, would be to make a rule about it. He said that a Conservation District had the authority as part of its general powers outside the 310 Law to make land use regulations. He said a rule could be made, requiring permitting or not, to govern the construction of “revetments.”

“The problem with this,” he said, “is that the rule would not be retroactive and so it would not address the current complaint.”

He said the third option was to take the position that a revetment of any sort, whether buried or on the surface, comes into their jurisdiction once the river reaches it and it becomes a part of the bed and banks of the stream.

MacIntyre advised the Board that any discussion the board has about whether it has jurisdiction or not would involve looking at the Mitchell Slough case. He said in that case the Montana Supreme Court dealt with the issue of “what is a stream” and the District was now dealing with the question of “what is a project.” He said they were different issues but the test would be the same.

MacIntyre characterized the “test” as looking at the totality of circumstances that surrounds the situation, “when you look at your policy, the Streambed Protection Act and the Constitution.” He said that although the revetment was not in the stream when it was constructed, the fact is, as photographs show, it now is. He said erosion of the banks is a natural function and people can anticipate it and do things to protect their property.

He said it is a question of law, “but underlying the Streambed Preservation Act is the requirement to get a permit for any physical alteration of the bank or bed of a stream that will affect the flow of water.” He said one can see in the photographs that the bed and banks of the stream are being altered by the cement and metal pieces that are now on the bank and in the river and that they were placed with the intent of doing just that.

MacIntyre told the District Supervisors that as attorney for the state Conservation District Association he would support them no matter which decision they made. But, he said, the complaint requires an answer so the District will have to make the fundamental decision as to whether it is in their jurisdiction or not.

Although the current landowners deny any knowledge of who placed the concrete along the river, MacIntyre said it was not necessary to know that. He said in a recent case involving the City of Livingston, the Montana Supreme Court decided that even though the landowners may not have placed the material, but inherited it, as property owners they are “maintaining it.” He said the law does not say when a situation becomes a “project”, it only describes what a “project” is.

“You must determine if what was initially a non-jurisdictional revetment is a project once it constitutes a physical alteration or modification of the streambed and flow of water,” he said. “You have a revetment now being exposed to a very important resource.”

The Board discussed potential mitigation efforts and what that might involve. There was some mention of letting DEQ handle the situation since that agency was also taking a look at the problem.

Ravalli County Flood Plain Administrator Brian Wilkinson said that in his opinion it was going down a slippery slope to call it a violation.

“You don’t know who did it or why they did it,” he said. He said, in fact, no one did it.

“It was the river that violated the property,” he said.

MacIntyre countered that he believed the evidence could easily lead the court to determine that it was a revetment, and that if the person who actually did it could not be determined then the current landowner could be held responsible for maintaining it.

Supervisor Kent Meyers said that in his opinion the intent seems clear in this case and it also seems clear that right now there is a violation.

“With stuff falling into the river it would be pretty hard to just walk away from it,” he said.

FWP fisheries biologist Chris Clancy, who works with the District on 310 permitting issues, said, “I think it is a clear violation. The intent was there. It was clearly put on the bank to fall into the river.” He said FWP would never approve the use of concrete rubble for riprapping purposes.

“This is not the kind of stuff to stabilize a river bank with,” he said. “The impacts on the river will be horrible and we can’t just walk away from this. I’m standing up for the river here.”

Ravalli County Commissioner J.R. Iman brought up other issues along the river and some failed river bank stabilization projects in the past, suggesting that the District would be opening a “can of worms” if they try to exercise jurisdiction over revetments. He said the state was doing the same thing along the river and not being permitted.

Clancy said that other events were not at issue and that the issue before them was what they needed to deal with.

“We’ve got junk in the river right now and it’s a problem,” he said.

The Board voted 5 to 2 in favor of accepting the complaint as valid. They gave the landowner until next high water to remedy the situation and decided that they would work out the mitigation requirements and plan in concert with DEQ as they believe that agency will also be involved.

Susan Bawden from DEQ’s Enforcement Division did visit the site along with representatives from the BCD on August 26. Accordng to Bawden, the agency is still reviewing the issue.

According to her report filed with the agency, she spoke with property owner Paul Dannels regarding the concrete on August 8 and that he claimed he placed the concrete forty feet away from the river.

“I explained to him that he was responsible for the material on his property and had to move the concrete so it doesn’t fall into the river, and he said he would not. I explained that it was not going to go away and that his failure to come into compliance… could result in an enforcement action and a possible penalty and he said ‘bring it on’.”

Bawden also states in her report that a second property owner, Stacey Auch, had been identified as having concrete on her property as well and a complaint was being pursued with that neighboring property owner as well.

Dannels did get help from Amy Chadwick of Great Western Engineering and both were at the site visit on August 26 and at the BCD meeting last Thursday. Chadwick said that she would be investigating grants to see if she could obtain funding to do some mitigation work. She expressed concern about the timelines for getting grants and the timelines for enforcement.

BCD Chairman Tom Ruffatto explained that, as long as a good plan is put in place and work on it was continuing in good faith, the District could usually accommodate for mitigation efforts that were extended over a longer period of time.

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