Montana Code 76-5-404. Artificial obstructions and nonconforming uses
76-5-404. Artificial obstructions and nonconforming uses. (1) An artificial obstruction or nonconforming use in a designated flood plain or designated floodway enforced under 76-5-301(1) and (2) and not exempt under 76-5-401 through 76-5-403 or subsection (2) or (3) of this section is a public nuisance unless a permit has been obtained for the artificial obstruction or nonconforming use from the department or the responsible political subdivision.
Terms Used In Montana Code 76-5-404
- Artificial obstruction: means any obstruction that is not a natural obstruction and includes any dam, wall, riprap, embankment, levee, dike, pile, abutment, projection, revetment, excavation, channel rectification, bridge, conduit, culvert, building, refuse, automobile body, fill, or other analogous structure or matter in, along, across, or projecting into any flood plain or floodway that may impede, retard, or change the direction of the flow of water, either in itself or by catching or collecting debris carried by the water, or that is placed where the natural flow of the water would carry the same downstream to the damage or detriment of either life or property. See Montana Code 76-5-103
- Department: means the department of natural resources and conservation provided for in Title 2, chapter 15, part 33. See Montana Code 76-5-103
- Designated flood plain: means a flood plain whose limits have been designated pursuant to part 2 of this chapter. See Montana Code 76-5-103
- Designated floodway: means a floodway whose limits have been designated pursuant to part 2 of this chapter. See Montana Code 76-5-103
- Establish: means construct, place, insert, or excavate. See Montana Code 76-5-103
- Flood: means the water of any watercourse or drainway that is above the bank or outside the channel and banks of the watercourse or drainway. See Montana Code 76-5-103
- Flood plain: means the area adjoining the watercourse or drainway that would be covered by the floodwater of a flood of 100-year frequency, except for sheetflood areas that receive less than 1 foot of water per occurrence and are considered "zone B" or a "shaded X zone" by the federal emergency management agency. See Montana Code 76-5-103
- Floodway: means the channel of a watercourse or drainway and those portions of the flood plain adjoining the channel that are reasonably required to carry and discharge the floodwater of any watercourse or drainway. See Montana Code 76-5-103
- Owner: means any person who has dominion over, control of, or title to an obstruction. See Montana Code 76-5-103
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Political subdivision: means any incorporated city or town or any county organized and having authority to adopt and enforce land use regulations. See Montana Code 76-5-103
- Responsible political subdivision: means a political subdivision that has enacted land use regulations in accordance with parts 1 through 4. See Montana Code 76-5-103
(2)It is unlawful for a person to establish an artificial obstruction or nonconforming use within a designated flood plain or a designated floodway without a permit from the department or the responsible political subdivision.
(3)(a) Parts 1 through 4 of this chapter do not affect any existing artificial obstruction or nonconforming use established in the designated flood plain or designated floodway before the land use regulations adopted by the political subdivision are effective or before the department has enforced a designated flood plain or a designated floodway under 76-5-301(1) and (2).
(b)However, a person may not make nor may an owner allow alterations of an artificial obstruction or nonconforming use within a designated flood plain or a designated floodway whether the obstruction proposed for alteration was located in the flood plain or floodway before or after July 1, 1971, except upon express written approval of the department or the responsible political subdivision. Maintenance of an obstruction is not an alteration.