Martin Kidston

(Missoula Current) Water rights, state law and other water-related issues took center stage in a hearing Thursday over whether Missoula County should grant a variance to allow a gravel pit south of Lolo room to expand in the years ahead.

Western Materials, which owns the 80-acre gravel pit, is seeking a variance from current zoning in hopes of expanding the operation by roughly 60 acres. It hasn’t set a firm timeline on when that expansion would occur but rather, it said any growth would be based on the market and demand for gravel.

But residents in the area contend the county zoned the property for residential use and that granting a variance to allow further industrial development would serve as a slight to surrounding property owners. Local residents have formed the Carlton Protection Trust and hired legal representation in an effort to block the expansion.

The decision will eventually fall upon Missoula County commissioners. But on Thursday, they afforded opponents more time to collect or examine hydrologic data before coming back to the issue in August.

“This (county) did take the affirmative step of implementing zoning in previous cases to prevent this exact issue from happening, which is the inverse of what’s happening here, where we’re questioning whether we should bend zoning to allow for a non-conforming use,” said Graham Coppes, an attorney representing area residents.

Along with other issues, Coppes said his clients have concerns over both water quantity and quality. While opponents fear the gravel operation will consume more water upon expansion and place existing wells at risk, they also fear the gravel operation could have unknown impacts on water quality.

Coppes said the pit expansion could act as a conduit to shallow aquifers, which could lead to leakage and contamination of the deeper aquifer.

“That’s all information we don’t have right now and that we hope we can gain through some sort of hydrological report. And we’d have to fact check that,” said Coppes. “It’s obviously known that you can pay someone to write a report that says anything. We see it all the time. We’d need a response period to that information.”

Issues over water

Coppes and his clients are asking Western Materials for a range of data including an analysis on the seasonal fluctuation of groundwater, the distance between the seasonal high ground water and deepest depth of mining, and well data.

He said they also want other hydrological data “not analyzed” by the state’s Open Cut Mining Act.

“Most notably, we’re concerned about the exposed and porous alluvial soils acting as a direct conduit for contaminants from the site in shallow groundwater,” he said. “We’d like to see an analysis of the confined, semi-confined or leaky-confined aquifers in the vicinity of the site.”

If provided such data, Coppes said they’d analyze the potential risk and ask the county to mitigate any concerns, if the project is approved. He added that his clients have water rights that are senior to Western Materials, which means they can make a “formal call” if their wells begin to run dry.

That could force the gravel operation to cease or restrict its water use, Coppes said.

“It’s very easy for some junior water user to say our well isn’t their problem. That’s why junior users asking for a new water right or an expansion of a water right are required to have the burden of proof under the Water Use Act, that they’re not going to adversely affect anyone else,” he said. “They’re asking for an expansion of a facility that may or may not require additional water to be used.”

Alan McCormick, an attorney representing Western Materials, challenged many of the statements offered by Coppes. Among other things, state law doesn’t require the depth of analysis Coppes is seeking, he said.

“There’s quite a bit of stuff being asked here that doesn’t have a fundamental basis of being needed to be asked. They don’t even have a hydrologist. That’s something that they promised,” McCormick said. “I don’t appreciate, at all, the impugning of our hydrogeologist’s qualifications and professionalism by saying you can pay anybody any amount of money to get the report you want.”

McCormick also said case law remains fuzzy regarding whether gravel is a mineral and, if it’s not, how zoning applies.

“If it was clear, we wouldn’t be asking for a variance,” he said. “In part, we’re asking for a variance because it’s not clear, and because case law seems to be trending to the side that says gravel is not a mineral for these types of analysis.”

Residential concerns

Area residents have voiced distrust over Western Materials’ plans, need for water and pace of expansion. But company president John Kappes on Thursday said the current pit likely has another 20 years-worth of material, based upon the pace of area construction.

Securing the variance now ensures the company can continue operating once the current supply is gone, he said.

“It’s more of an extension of gravel availability in the future,” he said, adding that any expansion would occur alongside reclamation of the old site. “We’ll be shifting our mining to the west. It’ll be at the pace which the economy is utilizing gravel. The footprint is going to be no different than it is today, and the water use will be very close to the same. This has been going on now for almost a year since we put in the application.”

While the operation wouldn’t likely consume more water than it currently does, Kappes said it’s no guarantee. But it would be less than if the property was developed for housing under current zoning, he suggested.

“To say we won’t need more water in the future, I’d hate to put that as an absolute,” he said. “But I know we won’t need nearly close to as much water as that area would need if it were developed as zoning says for one home per 5 acres. We won’t be anywhere close to that volume of water.”

While the issue now hinges on questions over zoning, mitigation, water and state law, area residents also have blasted the proposal for the impacts it would have on aesthetics and livability.

“I’ve spent over $200,000 working to improve my property since I’ve owned. That’s over the cost of buying the property,” one resident said Thursday. “If you approve this variance, I’m not going to put any more effort into my property – 17 years of effort down the drain.”

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Gallery Credit: Derek Wolf

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