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Are Public Lands Guaranteed?

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I have always been an advocate for providing clear information, but never guarantees. I always lead opinions with a pretty clear statement that “my opinion is”… That being said, one of the assurances none of us ever expected to change was public lands and how they can create open space for properties that are adjacent.

While adjacent public land or public land access is generally viewed as a major selling point or benefit (even in the absence of what I’m about to dig into), it can also have its downsides. For example, living near an access or trailhead could create an increase in motorized or non-motorized traffic which could lead to privacy or sound concerns. Notwithstanding, I generally feel that these types of annoyances are limited compared with the broader scope of being fortunate enough to live next to these recreation access points.

Though we have always assumed these lands would remain public in perpetuity, we recently witnessed a quiet, but far reaching proposal on the Federal level come into the spotlight that might change how we think about public lands moving forward. Tucked into a sweeping budget reconciliation bill AKA the “One Big Beautiful Bill” or (OBBBA) was language that may have required the US Forest Service and Bureau of Land Management to offer millions of acres of federal land for sale, much of which was adjacent to private property, particularly in the Teton Valley.

Fortunately, this section of the bill was met with massive opposition from conservation groups, outdoor Advocates, and private citizens. As a result, the land sale Provisions have since been removed from the Senate bill. At the time of this writing, there is no mandate to sell public land, at least as I interpret it. However, there are still some concerning aspects in the broader bill. They include Provisions that could affect land use and access including logging, oil and gas leases and reduced environmental oversight. In addition, just because this aspect of the bill was modified and removed, does not mean that it could resurface in the future.

All of this is a good reflection point for those of us in the real estate industry, or those that are interested in real estate or own real estate near public lands. Buyers will continue to be drawn to properties that border national forest or BLM because of the perceived open space permanence. We view it as an unbuildable buffer, unlimited open space and boundless Recreation opportunities. It’s important, however, to know that federal land boundaries can shift. BLM parcels, in particular, can be swapped, sold or least. While I view National Forest as much more immune to change, nothing is a guarantee, in my eyes as mentioned above. While unlikely, I think it’s something to reflect on. For those interested in real estate, we always recommend:

– Review designations such as Wilderness, National Forest, BLM, etc.

– Verify access, types of access, permitted juices and any known planning actions by contacting County officials and public land agencies

– Understand that public land status is subject to policy and political change

Public land is one of our Region’s greatest assets. For now, fortunately, the effort to sell it off has been stopped. Whether you are a buyer, landowner or simply a neighbor to these great assets, it’s worth remembering, things can change. Stewardship starts with staying informed, and advocating for our region’s great assets.

Teton County Idaho’s FEMA Flood Map Updates

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On September 18th, 2024, I attended an open house for a special board with Teton County in conjunction with a FEMA representative for the updated project timeline for new (long-awaited) floodplain maps. Obviously, the information below is my interpretation of that presentation, so always verify information with State, Local and Federal officials.

The purpose of the open house was to review the preliminary floodplain map data released on August 15th. This data was last updated in 1988 with the limited technology at the time. An attempt was made in 2011 to update the mapping with a LIDAR flyover of the county in 2011. However, Teton County GIS coordinator Rob Marin (thanks, Rob) pointed out some deficiencies based on the year and time of year that may have inadvertently resulted in inaccurate and exaggerated flood data. This led to another recent flyover with a greater level of accuracy based on the timing, and newer technology. This new data will lead the way for a 90-day appeal process for those that can provide strong evidence that the new map data is inaccurate. For any objections, it should be noted that a letter of final determination is expected in the Fall of 2025, with final maps taking effect early 2026. The 90 day appeal process is expected to begin in February of 2025 and end in May of 2025. Comments can be provided, and forms are available on site at the Teton County courthouse and online for these appeal processes. This could be something as simple as an incorrect street name, or a more significant appeal such as a formal objection with evidence of inaccuracies. An appeal requires quite a bit of work, and as such, will require some form of significant evidence as to the inaccuracy, usually involving engineering (data based) reports. However, these scenarios will be investigated. These should be provided to Teton County who will pass the comments along to FEMA.

With that out of the way, the meeting was informative as to the new data, how it is mapped, and how it can be beneficial to Teton County. In attendance at the meeting was a representative for FEMA’s Region 10, Marshall Rivers. FEMA’s primary concern is safety, predicting flood risk and preparing for flood events. The last time the flood maps were updated was 1988, and with vast, new technology, FEMA was able to map not only flood information, but ranges of flood risk (as well as a side benefit of 2 foot contour elevations now available from the county). This program for updating the data was in collaboration with local government and the National Flood Insurance Programs (NFIP) in conjunction with FEMA. The federal government is responsible for mapping communities on a continuing basis. The state governments prioritize areas for future mapping studies, and local governments provide local insight and support. They also integrate the data into planning mechanisms and processes.

How are the maps made?

The maps are made using ground survey and LIDAR technology to identify areas of floodplain. The floodplain is generally an area that can be affected by flood or high water. LIDAR is a laser-based aerial tool with extraordinary accuracy that can sense surprisingly small objects. As mentioned above, a byproduct includes two foot contour elevations across almost the entire county. This data can be used by surveyors or land owners for planning and building purposes. There are limitations to these maps which include some uncertainties or uncontrollable circumstances such as log jambs, changing rivers or even land impacted by wildfires. In addition to LIDAR, hydrology and measuring the flow of water is a big consideration in establishing these maps. FEMA worked with Teton County to add study zones with some tasks led by FEMA, and others led by Teton County and other agencies.

Updated Zones and Associated Risks

This new data offers a more granular prediction as to certain areas and their risk levels. Two types of flood hazards were mapped. The moderate flood risk (Yellow, when viewing the map) is intended to show a 0.2% annual chance of flooding (or less impactful areas), and high flood risk which is estimated to be a 1% annual chance of flooding (or more impactful areas). In addition, Floodway (as indicated in these maps in red), indicate areas that could be most impactful, and should be avoided. I was unable to determine the county’s future role in special requirements or restrictions in these areas.

Insurance 

Just because a home is not in one of these identified rest areas, does not mean that there is no risk of flood. Conversely, if your home is removed from these flood areas with the new mapping, it doesn’t necessarily mean that you should cancel your existing flood insurance. According to FEMA, one out of four people who have a claim are not in an area mapped and identified as a high-risk flood area. If your property is added into flood zones in these amended maps, you may be contacted by your lender (and should consider risk insurance, regardless). My understanding is that your flood risk is evaluated by your lender and insurance provider. If homes are built above the base flood elevation of the risk area, this can minimize the added cost, or potentially even the requirement for insurance. You can learn more (and confirm my beliefs) at floodsmart.gov. 

Base Flood Elevation & Development This new data will provide some instant data for what used to require elevation certificates to prove the base flood elevations. Information that may have once required an engineer to evaluate may now be immediately available with the new data. You do need a floodplain development permit whether you are handling infrastructure or building a home, but FEMA does not restrict development in floodplain areas.

OLD DATA (circa 1988)

NEW DATA (as of August 15th, 2024)

Teton County Land Development Code – Wildfire Hazard Areas

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As a continuation of the review of the Teton County Land Development Code, a short, but potentially impactful section of the code may affect a property of potential interest, or perhaps your own. This section is 5-4-3, Wildfire Hazard Overlays. Like many sections of the 2022 Land Development Code (LDC), the code does cross reference a “layer” or map overlay. Below is a high level overview of the areas affected by the Wildfire Hazard Areas. The areas affected by the Wildlife Hazard Areas are mostly limited to the perimeter foothills of the Teton Valley, but do include some areas of the valley floor.

As stated in the LDC, the intent of this area is “to protect the health and safety of structures in high-risk wildfire areas”. The greatest impacts of development is the requirement that principal structures shall be located within 200 feet of the primary public roadway to provide safe and efficient access for wildfire protection. In addition, a plan for management of vegetation and defensible space is required to be submitted with site plans, and fuel breaks are to be implemented along access roads, driveways and subdivision boundaries, as well as defensible space provided around principal structures for the International Wildlife-Urban Interface Code (WUI Code). The website for the WUI code can be found here. As a side note, it is expected that ALL of Teton County may be required to conform to the WUI Code.

As with many aspects of our relatively “young” LDC (first established August 2022) these limitations can create challenges for certain properties. At the time of this writing, a few concerns might include (but may not be limited to);

  • Properties where the designated building envelope is further than 200 feet from the public roadway
  • Properties where the most suitable building site (for reasons other than fire hazard) is further than the public roadway
  • Large acreages within 200 feet of a public roadway
  • New subdivision along public roadways

As a final note, the LDC does specifically state “public roadway” when referencing the 200′ distance requirement. As a result, I do expect further discussion at the county level to better define roadways and mitigation requirements for properties that are further than 200′ from public roadways in and of themselves.

Similar to other overlays and code requirements, it is recommended that potential Buyers and Land Owners review ALL aspects of the local codes and ordinances. In the instance of the Wildfire Hazard Overlays, it is recommended that contact is made to a Teton County, Idaho Planning or Building representative to understand current requirements, interpretations and future amendments.

*Wildfire Hazard Overlays as of September 11th, 2024.

Reviewing the Code – A Summary of Considerations when Buying Land in Teton County

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As a quick note prior to diving in, this article applies to the unincorporated areas of Teton County. The City limits of Driggs, Victor and Tetonia have their own Land Use/Development Code. Much of this was covered in Part III of my review of Teton County’s newest (2022) Land Development Code article, but I wanted to take some time to quickly highlight some of the things to watch out for when looking at undeveloped land as an investment and for future development – keeping in mind that these code requirements are obviously subject to change. We seem to be through a good portion of code revisions, and there also seems to be some more solid direction from Teton County with respect to these processes.

Zoning
There are several zoning types in Teton County, Idaho, and it is important to understand that each have their own special requirements for development or splitting property, and each have specific uses. While residential use (building a home) is generally permitted on all parcels and zoning types, it is also important to know that properties that were split illegally such as deed splits without a subdivision process after June 14th, 1999 may not have building rights. Similarly, properties that were split by way of an agricultural split may not have property rights. Much of this information can be verified with Teton County via a “Zoning Verification Request” which does come with a cost (currently $150) but this would generally be less of a concern with any property that is in a platted development. You can read my article on the different zoning types, here.

Flood Hazard
This one is still a bit tricky as FEMA has not completed the draft floodplain Maps. In either case, if a property, be it under the existing floodplain map or the future implemented map, Falls within these areas, the county will require elevation certificates before, during and after the build to make sure that the floor system of the home is above the base flood elevation requirements. Additionally, it should be considered whether flood insurance will be required, regardless of the project elevation upon completion even if the county is satisfied.

Wetland
I just wrote an article on wetland, it can be found, here. For parcels that require a wetland delineation (despite my disagreement with this) the county would prefer that the entire parcel be delineated to provide a holistic overview of the parcel, and to better tie in with Wildlife Analyses, if required.

Natural Resource Overlay (NRO)
Teton County is working on a new draft overlay of Teton County’s natural resources which expands most of the historic wildlife overlays. This one was enough for me to wrap my head around, but basically, if a parcel has an overlay where the site is intended to be improved, a shorthand wildlife analysis is required. This includes maps that show the existing boundaries of the applicable overlay, and some reasonable expertise for a development plan. At the time of this writing, I was told by Teton County that no specific qualifications were needed for this shorthand version of a wildlife analysis, otherwise known as an Abbreviated Wildlife Habitat Analysis (A-WHA). For more in-depth projects such as Land Development, subdividing and so forth, far more extensive analyses may be required which would constitute a full Wildlife Habitat Analysis (WHA). I am linking the policy here, but keep in mind that this is subject to change. Properties that have designated building in the lowest may not require Wildlife Habitat Analyses, even if the NRO layer encompasses all or a portion of the predetermined building envelope.

Hillside Overlay
Certain areas of the Teton Valley are encompassed by a “Hillside Overlay”. Obviously, most of these areas are going to be in areas with steeper terrain, and may have special requirements. In extreme cases, development may not be possible under the current code. This should be considered for accessing parcels in these areas as well as site planning for construction.

Scenic Corridor Overlay
The scenic Corridor overlay encompasses approximately 500 ft from State Highway 31, 32 and 33 as well as Ski Hill Road. Areas that fall within this overlay may have specific height limitations. However, the county code has an amendment in the works to allow variances without a public hearing (which is currently required) if a visual site analysis (what the project may look like from the road) is provided and it is concluded that it is not obtrusive. They are also some additional requirements with respect to design, which could include architectural styles, colors, and so forth. Special landscaping requirements may be implemented as well, which could include berms, trees, screening, etc.

There are several other overlays that, while they may not have any specific impact on one’s ability to improve a parcel, may be considered. Examples include the bear conflict Zone which requires bear proof trash cans, wildlife hazards, and even an understanding of roads that may not be maintained in the winter months, or maintained by the county at all. Other layers and restrictions still exist which obviously include subdivision restrictions, County setbacks and other code requirements including driveway lengths and a variety of other Land Development Code policies.

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