Sweeping open-cut permitting bill in Montana Legislature creating a gravel pit predicament

HELENA — According to data from the Montana Department of Transportation, the Treasure State is home to more than 1,800 gravel pits. These so-called “open-cut” mining provides material critical to everything from paving roads to building homes.

Proponents of a bill that could soon head to Gov. Greg Gianforte’s desk say it could pave the way for even more gravel production in the state by further easing the permitting process for certain types of operations. But some landowners worry that House Bill 599 would allow gravel operations to impact their water supply and tank their property values -- and eliminate the opportunity to have a voice in the process.

“Alarm Bells”

Tim and Colleen Moullet have ranched for more than 20 years from their home at the crest of a hill about 15 miles southwest of Huntley, Mont.

The Moullets’ 200 acres sprawl across the landscape at the sides and rear of the house, while their front steps offer an unobstructed view of Montana sunrises to the East. But, the couple says that view is about to change. Soon, it will include an open-cut mine and asphalt plant running 24-7.

When the land across from their home went up for sale, Tim says he and Colleen thought another farmer had snapped it up, so they were surprised to find a Missoula-based highway construction company called Riverside Contracting had purchased it instead.

“We heard that they bought it for gravel, so that’s when the alarm bells went off,” Tim said.

The Moullets say Riverside notified them of their intent to construct an open-cut mine a quarter mile from their doorstep on August 20, 2020. That left them just 21 days to submit a request for a public meeting with the Department of Environmental Quality, the agency in charge of permitting gravel pits. The couple managed to submit the request in time, but were denied because they couldn’t muster the 10 nearby residents the law currently requires to call a public meeting on a gravel pit permit.

So instead, the Moullets appealed to the Board of Environmental Review to have Riverside’s permit reconsidered. They say their biggest concern is that Riverside’s dig may impact their water supply.

“When you lose your water, you lose everything on your place,” Tim said. “Your place is just worth nothing.”

The Moullets and their attorney say Riverside Contracting didn’t provide evidence they properly surveyed the dig site for potential water impacts.

Now, the couple says they have another reason for concern in House Bill 599.

“Open-Cut 2.0”

The bill cleared the House of Representatives nearly down party lines in early March, and the Moullets’ concerns brought them to the state Capitol in Helena on March 15 to testify against it. Colleen voiced her opposition to lawmakers on the Senate Natural Resources Committee.

“From what we read in this House Bill, it will completely gut our ability to have any public comments. We’re very, very concerned,” Colleen told the committee. “We live in a very dry area. We’re very concerned our wells will be wiped out.”

The bill is aimed at simplifying the permitting process for rural “high-and-dry” gravel pits like the one the Moullets are opposing -- so-called because their operators do not expect the pits to intercept a water source. Under the bill, companies applying for permits for high-and-dry pits would have fewer hoops to jump through than “wet” pits. Revised requirements include only needing to provide three soil samples and certification that there are less than 10 occupied homes within a half-mile of the site in order to be approved through the expedited process. The Department of Environmental Quality would also not need to hold a public meeting on permitting for a proposed rural high-and-dry pit.

And, the bill seeks to raise the percentage of local residents who have to ask for a public meeting in order for one to be called from 30% to 51% of residents living within a half-mile of a proposed non-high-and-dry pit. Without scrutiny from the Department of Environmental Quality, opponents of the bill say companies only have to promise their pits won’t affect water, with no need to display evidence for such, in order to be permitted.

The bill’s sponsor, Rep. Steve Gunderson, R-Libby, helped write and pass an initial gravel pit bill in 2019 that revised fees for open-cut permits. After the success of that bill, Gunderson turned his sights on the permitting process for high-and-dry pits. He says the bill doesn’t impact the rights of homeowners or landowners.

“The biggest thing we had in mind was to make sure landowners were represented and taken care of, and I think we did a really good job of that,” Gunderson said in an interview.

Instead, Gunderson says the bill eliminates redundancies in the permitting process for high-and-dry pits, like some requirements of the Department of Environmental Quality to review water impacts or potential fire dangers in permit applications. He says environmental oversight for the pits would still be covered by other agencies like the Department of Natural Resources and Conservation.

“A pit that is touching water or is producing water, they’re two different animals, and they’re regulated two different ways,” Gunderson said. “A high-and-dry [pit], really, doesn’t need a lot of oversight other than a plan.”

Gunerson’s district in Lincoln County is home to 48 gravel pits, according to the Department of Environmental Quality. He says the bill is about leveling the playing field for smaller open-cut operations that are overburdened by the current permitting process.

Proponents at the bill’s Senate hearing agreed -- most of them from the gravel industry. Mike Newton, operations manager of Fisher Sand and Gravel in Glendive, told the committee that 85% of Montana gravel pits are rural.

“House Bill 599 is a win-win for the counties, the cities, the [Montana Department of Transportation], [Department of Environmental Quality], the contractors; it speeds things up, shortens permitting timeframes,” Newton said.

Sen. Bob Brown, R-Thompson Falls, carried the bill in the Senate on behalf of Gunderson and during a floor debate Tuesday, April 13, he summarized a main reason proponents say the bill is necessary.

“We have a lot of construction going on in the state, and there’s going to be a lot more getting started,” Brown said. “We need gravel for all of those projects.”

But many opponents did not mince words about the potential harms they said their property could experience if the bill passes. Attorney Abigail St. Lawrence testified against the bill on behalf of the Montana Building Industry Association and said it proposes too many broad revisions to gravel pit law.

“What is needed to revise the review process is a scalpel,” St. Lawrence said. “Unfortunately, House Bill 599 is a sledgehammer.”

A Waiting Game

The Moullets are most concerned that Riverside Contracting could withdraw their permit application if HB 599 passes and submit a new application to comply with the smaller set of regulations. Because their argument is built on the grounds that Riverside did not follow Department of Environmental Quality water considerations that would be eased by HB 599, their attorney says their appeal could be thrown out altogether.

Riverside did not respond to repeated requests for comment on this story.

For his part, Gunderson said the bill won’t create any loopholes for existing pits to take advantage of. His solution for those who don’t want a gravel pit near their home? Urge the county to step in.

“Now’s the time to zone that,” Gunderson said. “Zone it all residential.”

But for the Moullets, any chance to rezone the land across the road has come and gone. Now, they say it’s just a matter of time before the heavy machinery and fleet of trucks roll in and set up shop.

If their appeal is denied, the potentially 24-7 gravel mining operation less than a quarter mile from their front door will commence and they’ll wait to see what impacts it may have on their water, property value and day-to-day life.

“The sunrise viewings are going to be gone,” Tim said. “Which, I can live without that, I guess.”

Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at austin.amestoy@umontana.edu.