By Michael Howell
Having received plenty of requests from neighboring landowners to hold a public meeting over a couple of proposed gravel pits in the Big Creek area north of Victor, the Department of Environmental Quality did just that on December 12 at Bitterroot River Inn in Hamilton. The meeting drew about 75 people and more than 20 of them made public comments.
Two landowners along Big Creek, Todd Townsend and Wade Moudy, each filed separate applications on August 29, 2017 under the Open Cut Mining Act to dig gravel pits on their property. Although they were filed simultaneously, they are on different timelines in the process. DEQ must make a final decision on Townsend’s Pit by December 24, but has until December 31 for a final decision on Moudy’s Pit. That decision will be either to issue a letter of deficiency that would require revision of the application, a letter extending the review period if more time is needed to complete the analysis, or issue a permit.
DEQ Environmental Scientist Bryan Allison, who heads the review process on both permits, said it made sense to have a joint public meeting since the projects were so similar and in such proximity that they involve many of the same people. Most people who commented expressed concerns about both permits.
Allison noted that DEQ was going to review the permits under the Open Cut Mining Act and its compliance with that Act and the rules that were enacted to support it. He said the scope of DEQ’s review may not address some of the concerns that people have over things such as air quality, dust, water rights, traffic, and water quality and other issues. He said other agencies, such as the Montana Department of Transportation (MDT) and the County or Army Corps of Engineers or Department of Natural Resources & Conservation (DNRC) may have authority over some of these matters. Some of those officials were present at the meeting. The scope of DEQ’s Open Cut Mining Permit review would be limited to compliance with that Act alone and other questions may be referred to other agencies. He said many other permits might be required for any one project.
“I may issue them a permit,” said Allison, “but if there’s no way for them to get it out, then that’s up to them to figure out.”
Allison said that at this point in the process DEQ is in the same position as the public.
“The only information we have at this point is what is in this application,” said Allison. “We are the same as you.” He said the purpose of the meeting was to discover the concerns of the people in the area and to get answers to any questions that DEQ and the public have. He said feelings are not involved and that, “If it meets the rules we will approve it. If it doesn’t meet the rules we will not approve it.” He said that doesn’t mean it’s over. A new application can always be submitted and if it meets the law it will be permitted.
Both permits would require completion projects by 2032. The last two years of the 15 permitted years are set aside for reclamation, meaning 13 years of active gravel digging, although once granted, that timeline can be extended. Allison also noted, “We will accept an amendment to increase the acreage at any time on any permit.”
He called the current applications small scale operations and said besides the excavators, only two pieces of machinery would be used, crushers and screens. There are no restrictions on the hours of operation at either pit. He said the digging would intersect ground water, the digging would proceed in the water and in the end, ponds would be left as the reclaimed use of the area. He said DEQ had rules about how the ponds would have to be constructed with sinuous shorelines and a certain slope of bank. In all, the two permits taken together allow for the removal of 900,000 cubic yards of gravel.
According to Allison, the enforcement of the permit once it is issued is primarily complaint driven. Citizen reports are investigated, he said, and the number to call is (406) 444-0379.
The first thing to be brought up in the question and answer session was a conflict between two maps of the project areas. DEQ made one map based on GPS locations that were submitted with the application and the landowners designed the other map, and although Moudy said he didn’t see any difference in the maps, Allison stated that the maps were in conflict and said it would be considered a deficiency by DEQ and would have to be resolved.
Lots of questions were asked after that by members of the audience concerning everything from impacts to ditches, the need for some sort of storm water mitigation plan, the effect on stream flows, fisheries in Big Creek, and wetlands in the area and on nearby wells, traffic, dust, and noise pollution, and toxic dust from crushing concrete, a permit for which has already been obtained.
DNRC Hydrologist/Specialist Amy Groen spoke to most of the concerns about water and water rights. But technically what it comes down to is that the gravel pit is not their concern at this time because it is not a pond until it is put to some beneficial use like irrigation, or recreation, or for livestock watering.
Groen emphasized, “They are not ponds. They are gravel pits, an incidental catchment of water with no beneficial use. Until you put it to a beneficial use we don’t like to refer to them as ponds or reservoirs. These are not yet being put to beneficial use and they are properly referred to as gravel pits.”
Later on, neighboring landowner Brian Langton, who farms about 200 acres in the area and gets his water from Big Creek, would dispute this. He claims that a gravel pit full of water is a consumptive use of water through evaporation and leakage.
“Our basin is closed,” said Langton, who holds senior water rights on Big Creek. “This is in a way the creation of a new water right by taking away water that other users already have a right to.”
Another question was raised by District Court Judge Jeffrey Langton who lives nearby. He had heard that initially there was some discussion about permitting a total of 200 acres and he asked, “Is this the first in a string of pits out there?”
Townsend said that DEQ had made that recommendation at one point early in their discussions. He said it was in response to their uncertainty about exactly where they were going to put the pits so the recommendation was made to permit the whole 200 acres.
“I told him there was no way, the whole world would come unglued,” said Townsend. He said he had no intentions of doing anything other than his ten-acre project and was willing to commit to that. Moudy is already seeking a permit on all of his 14 acres, although he is only bonding five acres in this application.
Later it was acknowledged by DEQ that once any permit is issued, the time frame can always be amended if the project is going to take more time. It was also stated by Allison that, “We will accept an amendment to increase acreage at any time on any permit.” The department also allows the “assignment” of any permit at any time to anyone who can put up the bond. The land doesn’t have to change hands. The permit is for the operator as long as he or she has landowner approval. A new owner could give the operator one year notice to get out or could seek an expansion.
In answer to the question of what could stop a permit from being issued, Allison said, for example, if it turned out that something like a hydrological analysis was required, it could turn out that it is not cost effective to the landowner.
Later, Moudy answered in response to the question of whether he would do a hydrological study, saying, “No, I’m not going to do your test. The DEQ has a hydrologist and they will be looking at it.”
Townsend said that he, “was going to do whatever DEQ told him to do.”
Allison said that if it was determined that a hydrological study was required, DEQ would not be doing it.
“Our hydrologist will not be doing it, we would require them to do it, and our hydrologist would review it,” he said.
In answer to a question about the potential impacts on Big Creek during low flow periods, Groen said, “Without hydrologic studies I don’t think you can answer that.
If no water is extracted and nothing is done with the water in the pit, it remains a gravel pit forever if it is not being put to a beneficial use like fish and wildlife or recreation or stock or irrigation. Once it is put to any beneficial use a permit is needed for the whole pond or reservoir. However, it was also mentioned that DNRC just adopted a new rule that, if the gravel pit is over 10,000 cubic yards, DNRC would allow them to stock fish. She said that did not necessarily mean that Fish, Wildlife and Parks would approve it.
“You would have to get a permit for the fish from them,” she said.
In the public comment session, L.T. Hendrickson, President of the Rippling Wood Homeowners Association, said members were very nearly in total opposition to both proposals, listing concerns about noise, air pollution containing carcinogens from crushed concrete and gravel dust, water pollution, well contamination, solar heated water from the pit raising the water temperature in Big Creek, negative impact to ditches in the area, and decreasing property values. He submitted a study documenting the decrease of property values that ripples outward for miles from where a gravel pit is installed.
Concerns were expressed about the safety impacts at Bell Crossing intersection from the gravel truck traffic that could lead to installation of a stoplight, setting of a new speed limit, need for new signage, and possibly road lighting.
“The amount and type of traffic increase needs to be addressed in a proactive fashion to address all these safety issues at Bell Crossing,” said Julie Hoselton.
Several people expressed concerns about the lack of information being provided by the applicants to address all the issues being raised.
“You really don’t know how this pit is going to affect your neighbors,” said one woman in the audience. “You haven’t gone out and done due diligence to find out.”
Dave Golay, who irrigates from ditches that pass through the property, wanted to know how it would affect those ditches before he was impacted, not after.
The applicants claim that no wetlands are involved. But Lee Yelin, a water right consultant and neighbor to the project, said he had worked extensively on the property and that there were associated wetlands in the area and demanded that a wetland delineation needed to be done. He noted how in Ravalli County the agencies have developed a combined permit process which requires that all permits related to a project must be procured or a waiver of the permit if it is determined it is not required, before the primary permitting agency can issue one.
Yelin said his wife is Native American and that she was very upset that no action had been taken to determine if the grounds contain Native sites that need to be recognized. He said they were going to litigate that issue.
Others questioned whether the men were really going to be good stewards of the project if it did get approved and criticized Townsend’s use of his current property over the last 10 years.
“We watched a perfectly productive agricultural field turn into a festering, industrial, toxic eyesore,” said Patrick McCarron. “What he has shown me and neighbors in my vicinity is he is not a good steward.”
Mike Krout said, “In lieu of zoning, we rely on our government to protect us. So I petition DEQ and I say that it’s wrong for any government to approve a project that benefits a select few at the expense of so many.”
Written comments may still be submitted and will be considered in the application review, according to DEQ. Comments may be submitted by email using the “Public Comment on Todd Townsend – Townsend Pit 128” or “Public Comment on Wade Moudy – Moudy Pit” links under “Open Cut News” on the Open Cut Mining Section’s webpage at hhttp://deq.mt.gov/Land/opencut. Or mailed to DEQ Open Cut Mining Section, P.O. Box 200901, Helena, MT 59620-0901.
DEQ must assess the public comments and determine whether extended review is warranted.
The following corrections have been made to the above story. The Bitterroot Star apologizes for the errors.
• The spelling of DEQ Environmental Scientist Bryan Allison’s name has been corrected.
• It was DEQ, not DNRC, that produced one of the project site maps.
• The Bitterroot Star reported that: “It was also mentioned that DEQ just adopted a new rule, however, that if the gravel pit is over 10,000 cubic yards that DEQ would allow them to stock fish.” The department was named incorrectly. It was not DEQ, it was DNRC that adopted the new rule referred to. DNRC agrees that the rest of the sentence is correct, but due to the complexity of topic, suggests that people with questions about it should contact the agency.
• Referring to the water in the gravel pit, the Bitterroot Star reported that: “Once it is used in any fashion a permit is needed for the whole pond or reservoir.” (italics added). DNRC thinks the phrase used in any fashion was too general and invites misunderstanding, so it has been corrected to read: “Once it is put to any beneficial use a permit is needed for the whole pond or reservoir.”
• The Bitterroot Star reported: “If no water is extracted and nothing is done with the water in the pit, it remains a gravel pit forever if it is not being put to a beneficial use like fishing or recreation or cattle or irrigation.” (italics added). For better accuracy the italicized words have been changed so the sentence reads: “If no water is extracted and nothing is done with the water in the pit, it remains a gravel pit forever if it is not being put to a beneficial use like fish and wildlife or recreation or stock or irrigation.”
• Hydrologist/Specialist Amy Groen was quoted as saying, “They are not ponds. They are gravel pits, an incidental catchment of water with no beneficial use.” (italics added). DNRC claims that this statement is not true and must be an error in reporting by the Bitterroot Star. However, the statement was transcribed verbatim from our tape recording of the meeting. If what was said is in fact not true, as DNRC now claims, then it would be the agency that owes the public an apology for the misstatement of fact at the meeting, not the newspaper.