Cleanup Plan Underway After Builders Blasting on Beaver Bay Break Whitefish Lakeshore Protection Rules

An environmental cleanup plan is underway after builders detonating explosives to excavate a lakefront property above Whitefish Lake’s Beaver Bay touched off a landslide last week, cleaving the embankment into the water and destabilizing the slope so severely that city officials and water quality experts have called it the most egregious violation of local lakeshore regulations in more than 25 years.

The blasting agent was deployed by contractors building a single-family residence on a 4.7-acre lakeshore parcel, sending car-sized boulders tumbling down the embankment and causing an unknown amount of sediment to slough into the lake. The violation was detected on May 29 by personnel from the Whitefish Lake Institute (WLI), a nonprofit research organization dedicated to understanding and safeguarding the lake’s health. The WLI personnel were conducting routine monitoring of the lake when they spotted the landslide from a boat and immediately reported the incident.

“Within minutes I emailed both Flathead County and the City of Whitefish to notify them of the violation,” Mike Koopal, WLI’s founder and executive director, wrote in an email describing the timeline of events. “Within 30 minutes, both entities responded and, since this is in the county, I was able to coordinate transport of the county code enforcement officer on our research boat to the site that afternoon.”

In the week since the landslide was reported, a multitude of agencies has responded, including the state Department of Environmental Quality (DEQ), which opened an investigation into the incident and is coordinating a remediation strategy with the site’s building contractors, as well as with Flathead County’s code compliance officer.

The contractor is not required to seek DEQ approval for cleanup plans as no administrative order requiring such approval has been issued.

“DEQ is at the outset of its investigation into the matter, and the DEQ Enforcement Program is handling the complaint as it would any other complaint,” according to a statement from an agency spokesperson. “In this case, the contractor has taken responsibility for the discharge and has been in contact with DEQ to determine if a permit is necessary. DEQ cannot speak to the outcome of their permit inquiry. Pending conclusion of the investigation, a violation letter may be sent. If necessary, that letter would include an explanation of the violation and any corrective actions determined to be needed. DEQ remains in regular contact with Flathead County, as the site is within its jurisdiction, and the potentially responsible party, and no orders have been issued at this time.”

For Koopal, it’s critical that plans are laid quickly to restore and remediate the environmental damage to the lake and the lakeshore as soon as possible.

“The damage has been done,” Koopal said. “Our focus at this point needs to prioritize the mitigation and remediation of the site to reduce more deleterious effects to the lake.”

Koopal said the initial response was muddled due in part to a complex jurisdictional matrix encompassing Whitefish Lake, spanning city, county and state boundaries and causing confusion between agencies. For example, Flathead County initially determined it did not have authority outside of the lakeshore protection zone, which statute defines as stretching “20 horizontal feet of the perimeter of the lake and adjacent wetlands when the lake is at the mean annual high-water elevation.”

“The main construction footprint is more than 20 horizontal feet from the high water. It appears that blasting for foundation work was completed, which caused dirt and debris to enter the Lake and Lakeshore Protection Zone,” Jared Schroeder, one of only two code compliance technicians in Flathead County, wrote in a June 3 email to city and county officials, as well as to lakeshore residents and other stakeholders. “It’s our understanding they are building a single-family dwelling which is permitted within SAG-10 zoning; furthermore, Flathead County does not have a building department. As such, we cannot regulate the construction of the structure outside of the Lake and Lakeshore Protection Zone.”

In this case, however, the violation involved upslope activities that directly impacted the lakeshore protection zone, meaning the county can exert authority.

“That is a violation and we are working with the builders on a cleanup plan,” Schroeder told the Beacon on Thursday after the confusion was cleared up. “They also contacted [the Department of Natural Resources and Conservation], DEQ, the Army Corps of Engineers, so it isn’t going to just be us. It’s going to be a multitude of agencies and they will have to have permits in place to conduct the cleanup work. There’s a multitude of agencies involved, so that way everyone on the same page.”

Schroeder said he advised the builders to install a silt fence in the water to prevent further erosion and degradation of water quality and issued a partial stop-work order on the property’s lakefront aspect until a cleanup plan can be agreed to by all parties.

Koopal said a silt fence was an inadequate remedy and recommended installing a turbidity curtain. Koopal’s concerns about the inadequate remediation response were borne out on Tuesday when the silt fence collapsed due to wakes caused by boaters.

Derek Hyland, of High Country Builders, the contractors working on the property, wrote in an email to concerned parties that he ordered the turbidity curtains on Wednesday and they are scheduled to arrive within six days. “Our goal remains to be transparent and work with a coalition to correct the inadvertent landslide as quickly and cautiously as possible using all available resources,” according to the email. 

The contractors have submitted two cleanup plans to DEQ that call for excavation crews to “work from the upper portion of the property to slowly create a reverse slope allowing loose material and rock to fall away from the Lakeshore Protection Zone,” according to a description of the cleanup proposal.

“This material would then be trucked offsite. The excavation crew would continue this method until all 66.37 [cubic yards] would be removed,” according to details of the plans submitted to the county and DEQ. “Erosion control methods would be continuously updated and monitored with photos. This method would require the bucket of the excavation equipment to come into contact with Whitefish Lake to remove the rocks located below the high water mark at this time.”

DEQ is currently reviewing both cleanup alternatives.

Meanwhile, Whitefish officials have raised concerns about the ineffective administration of lakeshore protection regulations and expressed frustration about the jurisdictional morass.

“This is clearly the most egregious violation that I have observed in the past 25 years,” said Whitefish Mayor John Muhlfeld, who served on the Whitefish Lake and Lakeshore Protection Committee between 1999 and 2006. “Our biggest concern from the city’s standpoint is that we derive 10 to 20 percent of our annual water supply from Whitefish Lake, the balance coming from Haskill Basin, which was protected with a conservation easement.”

Muhlfeld, who works as a professional hydrologist, suggested as precautionary measures the developers install an anchored floating silt fence to contain the turbidity, and erosion controls along the disturbed slope. He also urged the contractors to retain professional services from a licensed Stormwater Pollution Prevention Plan specialist. 

In the decade since a Montana Supreme Court ruling ceded control from the city of Whitefish to the county following a long-running legal battle over control of the planning “doughnut” ringing Whitefish, both the county and the city of Whitefish have administered lakeshore regulations. In some cases, depending on the proposed action and where a property is located, an individual must obtain a permit from each entity. The city of Whitefish annexed the lakebed to the low-water mark in 2005 and continues to exert planning control of that area. The lakebed itself is administered by the Montana Department of Natural Resources and Conservation (DNRC), while DEQ is responsible for water quality. Montana Fish, Wildlife and Parks manages species and enforcement.

“We find ourselves at the Whitefish Lake Institute at the nexus of all the issues and regulatory authorities as we attempt to navigate issues and give Whitefish Lake a voice,” according to Koopal.

“The health of our streams, rivers, and lakes is defined by the thousands of smaller actions we all make as a society. Our actions today define how heavy of a footprint we leave on the lake for the next generation,” he added. “If Flathead County isn’t interested in adequately administering the lakeshore protection regulations on Whitefish Lake, they should consider an interlocal agreement with the city of Whitefish to do so.”

Flathead County Commissioner Randy Brodehl said the county clearly has accepted jurisdiction over the violation and he’s actively working to help coordinate a response streamline the remediation plan.

Still, Muhlfeld said the rules and their enforcement mechanisms have been defanged by the high stakes of lakeshore development in Whitefish, with which the antiquated fine structures cannot compete. For example, the developer of the single-family residence responsible for the recent violation was cited for a separate violation last year, when workers denuded the lakeshore’s slope by removing a large copse of trees within the Whitefish Lakeshore Protection Zone without a permit.

After the county received a complaint about the activity, the contractors were allowed to apply for an “after-the-fact” permit, Schroeder said. Although the permit was issued in arrears and remains in good standing today, the county doubled the fine for the lakeshore protection violation, Schroeder said, amounting to an $860 penalty.

“These regulations are not punitive and they are antiquated,” Muhlfeld said. “It’s our responsibility and the county’s responsibility to safeguard the water supply in Whitefish and we have implored and continue to implore our county commissioners to step up enforcement because we are all residents of Flathead County. This is our public water supply and it is their responsibility to make sure that they enforce the lakeshore protection regulations and that there are tangible repercussions when violations occur.”

Beth Sobba has owned a home on Lion Mountain Beach Lane near Beaver Bay for more than 20 years, living year-round on the property since 2020. She said the development next door, on a lot owned by Charles Paquelet, of Wisconsin, has been an ongoing inconvenience in the neighborhood for years. However, last week’s blasting operation was “the final assault,” Sobba said, adding that the extent of the environmental degradation far exceeds her definition of a neighborhood nuisance.

“I hope they can exercise their enforcement authority and force these individuals to halt the construction until it’s fully mitigated,” Sobba said of the regulatory agencies involved. “I think that is the only thing that is going to resonate with them because a fine won’t make any difference. They will just pay it and move on and I think that is unacceptable.”

“Let’s face it, the homeownership paradigm around Whitefish Lake and other lakes has changed where unscrupulous actions trump toothless enforcement,” Koopal said. “Lakeshore violations have simply become a minor line-item cost of doing business for many. The state of Montana needs to take a hard look at the fine schedule set for lakeshore violations. The current fine is a non-deterrent slap on the wrist.”

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