“Finding Common Ground” meeting held to clarify FEMA laws; questions linger

By: 
Eleanor Guerrero
CCN Senior Reporter

On Thursday, Oct. 26, state and local officials charged with floodplain management met with farmers, developers and ranchers in Red Lodge to find “Common Ground” regarding floodplain and 310 permit concerns. It was a complex subject but most attendees had some knowledge and concern about changing procedure. Questions lingered.
Phil Nardinger, President of the Carbon County Conservation District, which requested the gathering, was not satisfied. “I don’t know why we’re there now. I feel that the flood plain (managers) are not taking into account what Conservation Districts have done for 87 years.”
The Carbon County Commissioners led the meeting at the old Red Lodge Clinic building.
At issue is a Resolution passed by the County on June 5, that made the county officially subject to FEMA laws. Commissioner Doug Tucker said, “There’s a lot of confusion, both on your part and on our part.” The meeting was “informational.”
The FEMA laws were on the books all the time; they hadn’t been enforced for almost 18 years. A lot of the confusion seemed to be, why now?
Liability was the main issue. Should work done improperly contribute to a disaster the county still needs to take action and its work might not be reimbursed by FEMA. Worst of all, according to the commissioners, it could result in the loss of flood insurance for the entire county.
Locals complained the resolution increased the engineering studies needed.
Karl Christians of the DNRC Conservation District Bureau, spoke first and said, “We all have the same goals to protect the streams and resources and property.”
Josh Juarez, Carbon County Flood Plain Administrator said, “I started the program last March and in that time we have not required engineering for any regular maintenance for head gates, intakes, cleanouts or anything relating to agriculture.” He said, “I’m not sure why that’s the big point of this meeting.”
Juarez said only one case required an engineering study for work in the regular floodway. “Everything else has been given a pass.”
It was also discussed that a stream bed (310) permit was not needed for “small jobs.” But when asked what are small jobs, Christians admitted, “That’s a very good question.”
The Architecture and Engineering Firm, CTA, passed out estimates of engineering studies ranging from $6100 for riprapping along a riverbank to $43,000 for replacing a pipe culvert and chip sealing a road.
When CCN asked CTA’s Stephanie Ray whether they would consider a special “ag rate” she dismissed it saying, “That’s not in my pay grade.”
CTA’s Caleb Minnick responded to a question saying Section 5 details uses that do not need a flood plain permit but “it would still be great if you’d check in with your flood plain administrator.”
Ray commented, “Great dialogue.” Regarding small projects and FEMA laws she said, “They are what they are and they don’t really allow that small project ‘gray area.’”
A DNRC Guide to Stream Permitting was passed out. Minnick said, “It’s a great resource.”
Juarez replied, “Ah, you know, because it’s not.” He commented, “Most folks don’t bother to read this…It’s not simple, I’ve been Flood Plain Administrator for a year and half now and it’s still not simple for me to read it. “ He advised calling all the numbers it listed. “Fish, wildlife, erosion, all these things take multiple agencies to look at.”
When someone asks for a permit he said, “the first thing I do is cross my fingers and hope you’re not in the flood plain.”
Juarez volunteered a list of engineers certified with work previously approved. Juarez appeared to mock going off list, telling a story of “some high schooler or something made a map off Google Earth for his dad,” requiring it to be done right later, wasting time. The farmers and ranchers sat listening silently.
Jim Burns attended with his engineer. He discussed an emergency on his land flooding thousands of acres.
Juarez asked, “Is it really an emergency? How did we have an emergency in July?”
Burns replied, “We were in peak rise; we had multiple issues which compounded the forces. Diverted Rock Creek through my field. We lost the whole bank.”
Conservation Districts (CD’s) originated because of Dust Bowl Days. Millions of tons of topsoil were leaving, heading east. Christians said it “took Congress five years and a hellacious dust storm (the “black blizzard” of 1934). Dust was carried all the way to the Capitol.”
In 1935, Congress passed the Soil Conservation Act creating the Conservation Districts.” In ’37, President Roosevelt established Conservation Districts in each state with local reps.
He asked, “So are you going to listen to the government guy or your neighbor?” Conservation Districts provided local control after bad government management.
In 1939, Montana passed the Montana Conservation District law.
Christians said of a county’s CD board, “They have the same authority as county commissioners. They can pass laws, land use ordinances… They can do a lot. They’re a branch of state government.” It is a volunteer, elected, local position.
Montana has 58 Conservation Districts.
He said, “Conservation Districts cover a whole gamut of issues. These guys put in a lot of time.”
The Carbon County Conservation District officials have over 50 years of combined experience-“local ecological knowledge.” Christian said, “They are on the ground, they understand the resources. We like to capitalize upon that knowledge the best we can.”
Conservation District’s protect sure stream stability, improve soil health, improve water quality. An oil/gas drilling bond was a CD requirement.
Christians said the 310 stream bed permit’s purpose “is to keep natural the river and stream and lands-to protect the natural state and minimize erosion and sedimentation.”
“It recognizes agricultural use and to protect water for any beneficial purpose guaranteed by the Constitution. So agriculture is protected.”
Christians stressed the need to find common ground between state and locals, ”It’s the resource and the landowner. That’s who we’re working for.”
Christians said they could work out minor impact errors in FEMA maps for landowners.
Juarez disagreed saying only FEMA has that authority. “I can’t say, ‘Let’s find a common ground’…I’m not comfortable taking that responsibility for myself.”
Christians responded, “Sure you can.”
DNRC mapper Tiffany Lyden said, “It’s really hard. Lenders won’t take it. That’s what’s going to drive all the permitting. That base flood elevation. It’s constantly updated.”
Sears saw the need for an engineering study for “any man made activity that would affect upstream or downstream.” She said this is why they “are trying to work on a joint committee with Conservation Districts and FEMA. FEMA does not distinguish small projects...It’s mostly urban. The State is more restrictive than the feds.”
Jeff Ryan, of Lewis and Clark Conservation District, works on a stream permit committee with DNRC to open dialogue after a legislative effort failed to open up the Flood Plain Model Rules. He welcomed input. DNRC (Traci Sears) has all committee minutes.
Christians said they will meet with engineers to try to come up with some guidelines for some small areas.
Site visits were viewed as important but one Conservation District man said, “That’s redundant now. Why visit a site when the engineer has to do it?”
“It was informational,” said Nardinger reflecting Tucker’s comment.

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