DEQ review board balks at ruling on Clearwater gravel pit permit
Laura Lundquist
(Missoula Current) Before handing down its decision, a state review board has asked an examiner to reinvestigate the details of a gravel pit near Clearwater Junction.
During an April 19 hearing, the Montana Board of Environmental Review heard arguments about whether the Department of Environmental Quality followed the law when it approved a “dryland” opencut mining permit for a gravel pit proposed by LHC, Inc.
But in the end, the citizen board voted 5-1 to remand the case back to Hearing Examiner Terisa Oomens to get some clarification on the same issues that the petitioners, Protect the Clearwater, claimed DEQ failed to investigate.
“This board has the responsibility to examine whether or not the department followed the law in issuing the permit. That’s our primary function but it’s not limited to that. We also have the responsibility to look at the substance of the decision that’s being made here under our responsibility under the Constitution,” said Board of Environmental Review chair David Simpson during the meeting. “And I just can’t understand why we’re in a position of being asked to make a decision when we have virtually no information.”
A year ago, the DEQ approved LHC’s permit for the 21-acre gravel pit on state land within a quarter mile of the Clearwater River and Elbow Lake. After LHC started digging, nearby residents went to court and got an injunction after it was shown that DEQ hadn’t verified some of the requirements of the permit.
A dryland opencut mining permit was created by the 2021 Legislature to allow quick approval for rural gravel pits in dry locations far from houses and water. However, DEQ has interpreted the new law to say that DEQ doesn’t have to do any investigation and can accept the word of the applicant on the location of groundwater or surface water or if there are 10 or more primary residences within a half-mile.
The people living between the gravel pit and Elbow Lake formed a nonprofit organization, Protect the Clearwater, to challenge whether a dryland permit was justified. The neighbors said DEQ didn’t measure where the groundwater table is so allowing LHC to use the highly abbreviated dryland permit process was unjustified.
During a July 21 injunction hearing in Missoula district court, DEQ Reclamation Specialist Ruby Hopkins testified that she depended on LHC’s certification that the pit was sufficiently separated from groundwater or surface water, partly because the new law allows her only 15 days after receiving an application to approve a dryland permit.
After hearing the testimony and deciding that Protect the Clearwater would likely win the case based upon the merits, District Judge John Larson granted the injunction. That put the gravel pit on hold while Protect the Clearwater went through the state’s administrative process to appeal the DEQ’s decision to the Board of Environmental Review. Meanwhile, LHC and the DEQ appealed the injunction to the state Supreme Court.
On April 19, according to an official transcript of the arguments, as the Board of Environmental Review considered Oomens' recommendation that DEQ's permit was valid, they heard some of the same arguments that came up in the injunction hearing, although DEQ attorney Kaitlin Whitfield told the board while it could reject or modify the interpretation of administrative rules, it was limited to dealing with the opencut mining law and had to focus on “competent substantial evidence.”
Much of the discussion focused on the meaning of “affect” and what it meant to have a gravel pit affect surface or groundwater. Protect the Clearwater attorney Graham Coppes pointed out that both Judge Larson and Examiner Oomens used dictionary definitions, saying the meaning was unambiguous. Whitfield said legislative intent had to be considered so “affect” meant only “intersect.” Whitfield also asked the board to add language to the rules that would bolster DEQ’s argument, such as inserting language saying DEQ doesn’t have to visit sites to verify applicant claims.
Board member Stacy Aguirre said she backed the language changes and she was ready to vote on the issue, according to the transcript.
“I feel that DEQ did their work for this permit according to how they need to approach it. And that it’s being objected to, I understand that, but in my mind, I don’t see where they did not do their job. And again, I didn’t feel like I needed additional information to make that decision,” Aguirre said.
Simpson said he was inclined to support Oomens' recommendation but he and the four other board members expressed varying degrees of reservation. They agreed that they wanted more information on several points, including: 1. the number of residences nearby and a map showing the proximity of the pit to houses, Elbow Lake and the Clearwater River; 2. the depth of the groundwater relative to the pit depth; whether the opposing parties agree on the facts; and what might happen if the board’s decision is appealed.
Coppes told the Missoula Current that he had previously asked Oomen not to allow DEQ to assess the groundwater now, because the whole point is that DEQ didn’t bother doing so before it issued the permit. So he’ll ask for that limitation again.
“We felt like (the board’s) recognition that there was insufficient evidence to prove the criteria for issuance of the permit is exactly what we’ve been saying,” Coppes said. “(DEQ) can’t go get that evidence that he’s asking for now, and that’s the real problem. Administrative law doesn’t allow a post hoc rationalization, an after-the-fact rationalization. When a final agency action is made to green-light a project with a permit, that is the point of no return. They should have done all the fact-finding already.”
It took about six months for Oomens' first decision to come before the board. A reexamination shouldn’t take as long, but it could, because the board meets only bimonthly. In the meantime, the appeal to the state Supreme Court is fully briefed, so the justices could rule before the board takes up the case again.
“Six months ago, we asked the (Board of Environmental Review) to put this on hold until we hear back from the Supreme Court, because the arguments are intertwined enough that it could affect the board’s decision. But they fought us on that. And the hearing examiner disagreed with us. And now it’s probably going to happen anyway,” Coppes said. “The only people losing are the citizens out there.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.