By Michael Howell
New residential construction in the flood plain has been prohibited in Ravalli County since 1997. The Ravalli County Commissioners are now considering a proposal from the Planning Department to drop those restrictions for at least part of the flood plain by distinguishing between the flood way and the flood fringe, as state law does, and allowing residential construction in the flood fringe, as state law currently allows.
Tracy Sears at the Department of Natural Resources and Conservation (DNRC) said that Ravalli County and the town of Circle are the only two entities that restrict residential construction in the entire flood plain.
“They have a higher standard in Ravalli County and I understand that,” said Sears. “The Bitterroot River is one of the most dynamic rivers in the state. We do have other migratory streams in the state, but nothing like the Bitterroot.” Sears said that channel migration can be a problem in the flood plain, for instance, when an old channel in the flood fringe is captured by the river once again.
“We expressed our concern to Ravalli County about lifting the restrictions on residential construction in the flood fringe,” said Sears. “We encouraged the community to keep it in the regulations. But it is a local decision.” Sears said that DNRC did offer to show up at the public meeting if the commissioners desired, but the county did not respond. She said she did watch it live on the county’s live streaming access on the internet.
At the December 15 meeting, Flood Plain Administrator Brian Wilkinson gave a brief staff report, stating that they had been getting revised flood plain maps from the state over the last couple of years that have a higher accuracy than the previous maps due to the use of Light Detection Radar which can produce maps showing elevations accurate to within a few inches. He said part of that process meant coming up with revised regulations.
“The standards we have now,” he said, “are the state’s model standards that DNRC came up with and we need to adopt these regulations by January 16, 2015 to remain in good standing with the Federal Emergency Management Agency (FEMA).”
Fish, Wildlife and Parks (FWP) fisheries biologist Chris Clancy was the first to speak. He said that the new maps, with their greater accuracy, were a good thing and that revising the format of the regulations to agree with the state’s model regulations was a good idea as well that could make them more usable. But he was adamant that the regulations prohibiting residential development in the flood plain should not be removed just because they are stricter than state law. He said that stricter regulations were needed in the Bitterroot due to the unusually unstable character of the river here.
“I can see that on a stable river where the river doesn’t move around much the model would work fine, but it doesn’t apply in the Bitterroot,” said Clancy. He said “any determination of the flood way in the Bitterroot River is only good until the next high water.”
He noted that the flood plain may be fairly accurately designated by elevation measurements, but there is no easily visible distinction between the flood way and the flood fringe. Instead, it is based on a complex model involving water velocities and other factors. He said the model being used here is over 20 years old and does not reflect where the river is today. He said there are areas depicted in the flood fringe where the main channel of the river flows today. He said the problems with that are numerous.
“This change would mean a lot of homes and fill in the flood fringe that is going to possibly be in the flood way in a couple of years since the river jumps all across the flood plain from year to year in different places.”
“Unlike a lot of rivers, the Bitterroot River moves back and forth across the valley floor,” he said. He suggested that instead the county look at adopting the new map and new format but keep the restrictions against building in the flood plain. He said a process for determining that some areas in the flood fringe could be developed to accommodate for those places that for one reason or another are not likely to be visited by the river.
Clancy also noted that he was not aware that anything like this was being considered until the Tuesday before the meeting.
Planning Manager Terry Nelson said that letters had been sent out to landowners in the flood plain or within 300 feet of it with a link to the proposed regulations.
Kirk Thompson spoke on behalf of the Bitterroot River Protection Association, stating many of the same concerns. He said there were places recognizable up and down the valley each year where the river’s flood way has moved into what once was designated as flood fringe. He suggested that if the county allows someone to build a home in the flood fringe and then the river moves over to it, then the county could be held responsible for any resulting flood damage.
“You could be held responsible because you permitted it knowing full well that the river could move over there,” he said. He echoed Clancy’s suggestion that the County consider a process by which someone could demonstrate that building in the flood fringe was safe and that there was little likelihood that the river could ever reach it.
Christina Culbertson, who owns land along the river and in the flood fringe, said that she would like to be able to develop part of her land that has always been dry although located in the flood fringe. She noted that problems were produced on her property by the work done on the Veteran’s Bridge north of Hamilton.
“You changed the direction of the river when you did the Veteran’s Bridge,” said Culbertson. “It was moving to the east before that.”
Leo Staat, who has lived next to the river north of the Stevensville bridge for over 70 years, recounted the problems created by work on that bridge and how it had a ripple effect downstream as water was concentrated at the bridge and then directed towards the bank where his home was located.
Fred Weisbecker spoke as owner of a river outfitting business and for the Bitterroot Audubon Society. He said that he has seen firsthand the drastic moves that the river can take and does take each year during high water. He said that 80 percent of the birds live in the river’s ecosystem. He said riprapping the river was not good for his business nor was it good for the birds.
“The river is a gorgeous place and an economic driver in the valley,” he said. He said meandering of the river helps a lot during unusual flood stages.
Former commissioner Carlotta Grandstaff submitted a study done for the Association of State Flood Plain Managers. She said the study shows that “lawsuits filed by residents who located in the flood plain are far more prevalent than lawsuits filed for being denied a permit to build in the flood plain.”
“Allowing building in the flood plain is insanity,” said Grandstaff. “Property will be damaged. People may be hurt. Lawsuits will be filed.”
Niki Sardot, a local developer, asked everyone to imagine two properties to the left and the right of a third property, all located near the river bank. She said that forcing her to put her house back from the river would mean no view and thus a much lower selling price.
Dwayne Rasmussen said that he did not live along the river but he was concerned about the man who lives near Bell Crossing. He said the river had built a big gravel bar in the middle of the river and was now flowing towards that man’s house. He said the simple solution was to go in and cut a path for the river through that gravel bar.
“I don’t believe that rivers should be left to run wild,” he said. “Folks need gravel.”
Kip Curtis said that he owned 40 to 50 acres in the river bottom that “had never seen the river.” He said he would support some way to give access to building in fringe properties. “If you could find a way to identify those properties and allow it there I would support that,” he said.
Pam Erickson said that she had seen rivers that she knew as a child in California get turned into concrete spillways. She said that riprapping simply compounded problems for people with land down river. She urged the commissioners to “think about the river, not just the land.”
Former commissioner Jim Rokosch echoed other people’s comments about the river’s dramatic movements across the flood plain. He noted that even though there has been a prohibition here on building in the flood plain for the last 17 years, there is still an enormous amount of emergency permits issued every year to address problems with the river’s movements.
Cathy Edmund said that people who buy land in the flood plain “have taken on a personal responsibility and a personal risk and should be allowed to do so. When we bought, we knew that,” she said. “What’s at stake here is personal property rights.”
Jack Mauer said that the Bitterroot Chapter of Trout Unlimited was concerned about the effect on trout fisheries if the prohibition on building in the flood plain was lifted.
“Relaxing the regulations right now is not a good idea,” he said. “The current regulations are not good enough. We are swamped with 310 Permit requests as it is to do work to protect banks from erosion and protect homes.”
Shirley Roe from Darby said she had seen very little change in the river in the last 55 years. “The river can’t come first. The people have to come first,” she said. “Federal and local government are infringing too much on people’s lives.”
Penny Howe said that protecting private property was a major issue. “We need to allow people to increase the value of their property in any way possible.”
In response to a question from Commissioner JR Iman, Flood Plain Administrator Brian Wilkinson said that the main difference in the proposed regulations was that they would permit residential construction in the flood fringe where it is currently prohibited. He said currently people can put fill in the flood fringe, but they cannot put in fill for a residential structure.
Planning Manager Terry Nelson said that to have regulations stricter than state law, “we must provide findings of fact and conclusions of law to show why we have a reason to increase our regulations. Typically in land use situations that means peer reviewed scientific studies both on why and on the economic impacts. “If you want to go above and beyond, we can certainly do that,” he said, “but we need to do some studies.”
He said any building in the flood fringe would still go through several agencies to protect the public health and safety. He said FWP and the Bitterroot Conservation District and sometimes the Army Corps of Engineers all go in site to review projects. He said that although river migration studies have been done on other rivers, one has not been done nor is one planned for the Bitterroot.
Commissioner Jeff Burrows noted that the map delineating the flood fringe was not accurate in places because the river had migrated since 1995. He asked how that would be taken into account.
Nelson said the flood plain administrator would probably not allow fill to be placed in the river if it’s there. “We can require a map revision,” he said.
Asked by Burrows if the current regulations would meet the state’s requirements if the new map was simply adopted, Nelson said, “We felt it would be better to go with the DNRC’s model regulations.” He said for one thing the state had already ensured that those regulations reflect existing state law. Another reason was to make things easier for DNRC’s flood plain technician, Larry Schock. Since he has to work in five different counties, it made sense to draw on the same set of regulations to avoid conflict, said Nelson.
Burrows said that he was concerned about the eleventh hour changes coming through without a lot of time to have the public process input and dialogue.
“I don’t know what time has passed since Planning got it until now, but we are kind of under the gun to get something done now,” said Burrows. Commissioner Suzy Foss agreed, saying she had two pages of questions from the public that she still needs answers for.
Asked who has the authority to make a determination in the flood fringe when the river has moved into the area, Wilkinson said that was his job. Although he gets technical advice from Schock (DNRC), he would make the call as Flood Plan Administrator.
“Where is the flood way? The flood way is where it is shown on the map,” said Wilkinson. “It is defined on the map.” He said the problem is when you look at an aerial photo, and see that the river has moved out of the flood way. “We know intuitively that the flood way is where the river is flowing, but by the study, the definition of flood way is where that shading is and where it was determined to be by the study and on the map.”
Nelson said that when the river jumps significantly, they let DNRC know there is a problem.
“How do you define it? You’ll know it when you see it,” said Nelson.
“So who makes a change in the map?” asked Commissioner Iman.
Nelson said that individual landowners can have an engineered survey done to show that they are not in the flood way. He said FEMA or DNRC could do it, “but it comes down to money required to do it. I believe the county, if they so wish, could also instigate a study to do a letter of revision for the map, but it is not a cheap process.”
Burrows noted that the proposed new regulations also add something not in the old regulations. He said the old regulations prohibited the storage of solid or hazardous waste disposal and other multi-family systems, period. But the new regulations add, “unless the system is approved by the local environmental health regulations.”
“Yes,” said Nelson. “Even before the FEMA maps we were looking for some way for sealed components to flow out of the flood way to another spot out of the flood plain. Our current regulations did not allow that.” He said there were some DNRC rules that do allow transport through the floodway.
“Which could be the river?” asked Burrows.
“Sure,” said Nelson. He said the new regulations simply state that it is allowed if the Department of Environmental Health allows it.
Nelson said the county, as permit issuer, acts as a clearing house for all the other permits from all the other agencies.
“We take their recommendations very seriously and take them into account as to what actually goes into a permit,” said Nelson. “We are the regulatory agency, but it is far from making a lone call. We do get input from DNRC, FEMA, the Conservation District, the Army Corps and FWP… so there is oversight.”
Clancy of FWP disagreed, saying that the only time he or the Conservation District is involved is when the activity is taking place within the high water mark and the Army Corps only when fill of wetland is involved.
“I think we have some fail-safes,” said Commissioner Greg Chilcott, “with the Board of Health and engineering requirements, to satisfy the permitting.” He said he thought the permitting process would work. He said there were enough regulations and permitting required that, even though he owns land in the flood way, he would not be willing to go through all the trouble to build there.
“It will be cumbersome, and time consuming. I wouldn’t go through it,” he said. “But I would rather err on the side of access than make a blanket prohibition.”
Chilcott said the board had reviewed the new regulations, made proposed amendments, and concurred on the changes. “Now we can adopt them and send them to the agency. I don’t know why we would delay that.”
Burrows said, “I think it’s because it’s a big change and a big proposal and it wasn’t put out there with a long time to look at it. I went through these and dug through them from the time we got them and I’m still picking up stuff in terms of changes. I’d be for giving people as much time as possible to look through these and come back with comments and alternatives, or any other information they want to bring forward. This process didn’t have a lot of time associated with it.” He noted that Clancy from FWP hadn’t gotten it until the Tuesday before the meeting.
Nelson said he believed there would still be time to accept more comment and make any changes required and still get agency approval before the deadline of January 16.
“It pains me to say it, but I agree with Jeff,” said Nelson. “It’s always a good idea to give people plenty of time to digest the information and I think the public can see what we’ve done here today. Unless there is some new overwhelming situation, I don’t anticipate any change, but there could be some information we don’t have.”
The meeting was continued until December 22.