State lawmakers are wading into one of the most controversial land-use issues in the Flathead and across Montana as “gravel week” gets underway in Helena. A spate of legislation has begun working its way through committees in an attempt by lawmakers to iron out the deep-rooted problems in the permitting process and operating guidelines for gravel pits that has left everyone involved with the opencut mines – from gravel pit operators to contractors to neighboring landowners – dissatisfied, to say the least.
Attempts to reform how the state Department of Environmental Quality issues permits for gravel pits, most notably in the 2007 session by Rep. Mike Jopek, D-Whitefish, failed, in part, over objections from the broader Legislature that the problems were isolated to rapidly developing counties in Western Montana, and a statewide solution was inappropriate.
Now, Rep. JP Pomnichowski, D-Bozeman, and other lawmakers are betting that the host of high-profile gravel-pit related problems since 2007, along with the heightened demand for gravel sure to accompany any major road projects funded by the federal economic stimulus, will force lawmakers in 2009 to examine the gravel pit issue with a fresh perspective and urgency.
“Two years ago, this was cast as a Flathead problem,” Pomnichowski said. “In the intervening two years, Gallatin County has had huge problems with this.”
Last year a state audit found DEQ’s permitting division plagued by a lack of file documentation, a failure to collect certain taxes and a general lack of a consistent, formalized permitting process for opencut mines. In April a series of highly controversial district court rulings forced DEQ to issue several gravel pit permits without the environmental review required under state law, when a judge deemed the agency incapable of issuing the permits due to understaffing and insufficient resources.
The result has been that gravel pit operators often can’t get a permit in a timely manner. Contractors complain they sometimes fail to complete jobs on time when gravel resources aren’t available or predictable. And those living near gravel pits alarmed about the large trucks, dust and environmental impact have no faith the state is looking out for their health, safety or wellbeing.
“Right now, our gravel pit permitting process is not working for anyone,” Pomnichowski said. “The illustration of how the process has failed everyone has hit five counties.”
Pomnichowski has five bills to overhaul gravel pit regulations scheduled for hearings this week in the House Natural Resources Committee. Chief among her bills is a revamp of Jopek’s, which would impose an annual fee on gravel pit operations ranging from $75 to $600, depending on the size, in acreage, of the mines. The money raised from the fee would then go to pay for more staff in the permitting division at the DEQ, thus expediting the agency’s processing of applications.
Another bill would allow counties to set up their own permitting procedures for gravel pits approved by the state to deal with surrounding community issues. DEQ would still handle air and water quality permits, but the county could dictate, for example, which routes the gravel trucks took to and from the pit, and at what hours the mines could operate. A third bill would require public notice when a gravel pit is applied for, and should a certain number of landowners call for it, a public hearing on the proposed operation. Other bills would require control of surface water runoff to a wet gravel pit, and require that a quarter of land designated for a gravel pit remain undisturbed or in reclamation at one time.
Other lawmakers are tackling gravel pit reform in additional ways. Missoula Republican Rep. Bill Nooney has a bill specifying what form the public notice for a proposed gravel pit should take, and a bill by Rep. Jill Cohenour, D-East Helena, would require an applicant for a gravel pit to provide proof they have also applied for the necessary environmental permits.
Sen. Gary Perry, R-Manhattan, has introduced a bill similar to Pomnichowski’s that would assess a fee on gravel pits to pay for increased DEQ staffing, though his fee would be based on the amount of gravel removed, not the acreage of the pit. And another bill working its way through the Senate with little opposition so far simply requires a gravel pit operator to post their name and number where they can be reached at each entrance to the pit.
Perry’s bill was pushed by the Montana Contractors’ Association, which represents the interests of gravel pit operators, as part of its outlined “Good Neighbor” initiative – a series of straightforward steps to relieve tension and foster communication between gravel pit operators and adjacent landowners, according to MCA Executive Director Cary Hegreberg. The Contractors’ Association has long supported legislation to impose a fee on gravel pits to increase staffing at DEQ, but Hegreberg supports Perry’s model, based on the amount of gravel removed, over Pomnichowski’s, based on acreage.
For much of the rest of the legislation, as of last week, Hegreberg couldn’t say which bills he would support or oppose, but indicated his overwhelming goal was to protect the property rights of gravel pit operators and foster changes at DEQ that would make permitting predictable – even if it meant imposing some heightened regulations on gravel pit operators, so long as those regulations were consistent statewide.
“Our organization is going to support legislation that gives counties broader authority to impose operating conditions on gravel pits within their jurisdictions,” Hegreberg said. “But in return, we’re going to be asking for legislation that would limit a county’s ability to deny a gravel pit outright.”
Prior to the session, Kalispell Republican Sen. Bruce Tutvedt, a West Valley farmer and gravel pit operator, met with Hegreberg, DEQ officials and the Montana Association of Counties to work out an omnibus bill that covers many of these issues, but as of last week, the legislation has not been introduced formally and exists only in draft form.
The deadline for introducing new bills is approaching, so the coming weeks should make clear which bills have a chance of becoming law. Pomnichowski said she is amenable to changing and amending her bills, but she anticipates resistance from the construction industry. County governments will also oppose any legislation that might impose fees on their publicly owned gravel pits, though all the legislation contains exemptions for counties in their fee structures.
And there are still likely to be eastern Montana lawmakers who question the necessity of all this new regulation, though Pomnichowski hopes looming stimulus projects all over the state will compel them to reform gravel pit regulations in way that could hasten permitting at DEQ. But the issue of gravel pits has come to a head in Montana, Pomnichowski said, and can no longer be kicked down the road for the next Legislature to deal with, as previous sessions have done.
“We have a problem that is just woeful,” she added. “Two years from now it’s too late.”