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Messing with Montana

Illegal river work nets two Victor men some hefty fines

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The two convictions for water quality violations that came down last week in federal court sent a message to those who would mess around with Montana’s rivers and streams: Do it at your peril.

Last week U.S. Attorney Kris McLean negotiated plea bargains in the twin cases of U.S. vs. David Bush and William Clark. The two Victor men were originally charged with four felony counts each of discharging pollutants into the Bitterroot River, and an additional felony count of conspiracy to discharge pollutants. Clark, a contractor, and Bush, a riverfront landowner who lives downstream from country-western singer Hank Williams, Jr., each pleaded guilty to two misdemeanor counts of violating the federal Clean Water Act several days into the jury trial, held in Missoula.

Bush was fined a whopping $45,000; Clark agreed to perform $50,000 worth of community service work specifically benefiting the Bitterroot River.

What the two men did that netted them such huge fines was “egregious,” says Dr. Marshall Bloom, a long-time member of Bitterroot Trout Unlimited (TU) and an outspoken advocate for the Bitterroot River. They dredged the river to re-channel the meandering stream away from Bush’s riverfront home which was being threatened by the river’s natural flow.

The work left behind a large gravel berm in the middle of the river and a scene of general destruction that raised the ire of anglers and commercial fly fishermen.

In the spring of 2000 the Bush and Clark river work caught the attention of local river enthusiasts, as well as the Army Corps of Engineers, the Environmental Protection Agency (EPA), the Montana Departments of Environmental Quality, (DEQ), Fish, Wildlife and Parks, and the Bitterroot Conservation District, what Bush’s attorney Michael Sherwood called at trial “the whole alphabet.”

Eventually, the case that had the entire Bitterroot River fishing brotherhood in an uproar landed on McLean’s desk.

McLean says that lawyers for Bush and Clark approached him in mid-trial to make a deal. “It happened in the middle of the trial, which is surprising.”

What’s also a bit surprising—and to many Montanans, long overdue—was the willingness of the EPA to prosecute the case as vigorously as it did.

The fines, though, didn’t represent a change in attitude about prosecuting people for violating federal water quality laws, says McLean. “It’s just that we have better resources.”

Until recently, the nearest EPA agents were in Denver. “It’s hard to get attention that way,” says McLean. The agency now has two agents in Helena, which helped when McLean was ready to file charges.

Though McLean says he’s pleased with the results of the plea bargain, Bloom says it didn’t have to end that way. Long before Clark and Bush drove their bulldozers into the river, TU had tried to convince the two to use a “softer” riprap method. Instead of boulders, TU suggested to Bush that he use the root wads of cottonwood trees to shore up the bank in front of his home, a method that’s being used more often on the Bitterroot. It is still considered experimental, says Bloom, but it’s also more aesthetically pleasing and much better for trout habitat. TU even offered to plant stream-stabilizing willows and other riparian shrubs along Bush’s property to prevent further erosion.

That offer never went anywhere, Bloom says, and TU never pressed the issue because members believed that Bush’s project would be fish- and habitat-friendly. “’Til what’s his name [Clark] went out there and built the Taj Mahal of riprap,” he says. “They went a little bit overboard. That’s an understatement. They violated the conditions of those (federal, state and local) permits in spades.”

The hefty fines, says Bloom, are an indication that Montana authorities are beginning to recognize how some stream stabilization projects are getting out of hand. The permits required to do such work, which some landowners decry as bureaucracy gone mad, were in fact written in simpler times when people knew better than to build their homes on eroding stream banks. Bloom says the permits place little burden on the landowner, adding, “The permit process is generous to the landowner. So if you’re doing something as egregious as this, the hammer has to come down.”

The hammer may come down again soon. On July 9 McLean will bring another alleged water quality violator to trial. David Phillips has been charged with 15 counts of violating the Clean Water Act and another 11 counts of mail fraud, wire fraud and money laundering.

Phillips, a land developer in Philipsburg, is charged with digging ponds in wetlands along Fred Burr Creek in the Philipsburg area without the necessary permits.

Meanwhile, in the Bitterroot, Clark will be looking for river projects to work off his community service. Bloom has one in mind. He would recommend a stream restoration project for Mill Creek, just west of Corvallis. The whole alphabet of government agencies is behind the project, he says. All that’s needed now is the heavy equipment to get the job done.

“If I had a wish for that project it would be maybe that some of that labor Bill Clark has to do would be to go in there and help them out. I’d be delighted to see him put his talents to use in a positive way.

“Agencies and citizens are getting tired of seeing their rivers turned into concrete channels,” adds Bloom. And the message from last week’s convictions is two-fold: “You can’t do it anymore. And doing it in an environmentally-friendly way is affordable for many river-bottom landowners.”

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