The Montana Department of Environmental Quality made that determination late last week after LEMB Co. LLC of Oregon said the company had made a mistake and dug too large a hole on its property.
“It turns out that we needed to make some changes in the pond construction,” said LEMB's attorney, Alan McCormick of Missoula. “It's no longer going to make economic sense to crush that gravel on site.”
The permit process would have required an environmental assessment and public comment. The developer would also have been required to outline his plans for the property during the process.
In a letter dated June 5 to the DEQ, McCormick said the company now plans to move about 10,000 cubic yards back into the pond. The remaining gravel will be spread around the property, including some to build a landscaping berm.
DEQ attorney Jane Amdahl, in a June 13 response letter, said since the company no longer plans to crush any of the stockpiled materials for placement on roads, the state determined it no longer needed an opencut mining permit.
But the decision came with a warning.
“Please note that if the department discovers, or if any of the many concerned citizens bring to its attention, new or different information about the excavation or the uses to which the stockpiled materials are put, the department may decide to revisit this decision,” Amdahl wrote.
The decision wasn't based on any lack of concern for environmental issues at the Rock Creek pond site, she said.
“We trust that LEMB will be a good steward of the land and will landscape the materials into the surrounding terrain in a responsible manner,” Amdahl wrote.
McCormick said while LEMB didn't agree with DEQ's initial decision that the company needed a permit in the first place, “this was the conclusion we were seeking.”
The company will now seek to overturn an injunction for work on the pond at a hearing scheduled for Monday, June 26.
LEMB was sued by the Rock Creek Protective Association in May. The suit claimed LEMB was circumventing county subdivision regulations, digging in the floodplain without a permit, and violating both the state's opencut mining act and water quality act.
Missoula District Judge Ed McLean said in an earlier ruling that LEMB could restart work on the pond if DEQ ruled the company didn't need a permit.
“There's no basis now for the preliminary injunction,” McCormick said.
John Menson, president of the Rock Creek Protective Association, said the group plans to meet with DEQ Tuesday to protest the state's decision.
“We hope that as a result (of the meeting), the DEQ will have a better understanding of the facts and require a permit,” Menson said.
The company continues to disregard state requirements during this initial construction phase, Menson said.
The pond was more than twice the size originally permitted by the state, he said. Since then, the Department of Natural Resources and Conservation has withdrawn the right to divert water into the pond until the issue is resolved.
“They are very concerned with the effects on the river and the health of the fish,” Menson said. “We compliment the DNRC on their efforts to make sure that the developer goes through the proper steps of getting approvals.”
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