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MISSOULA — The company with plans to develop a subdivision near the mouth of Rock Creek will not have to secure a state mining permit for a 5-acre pond the company already began digging, state regulators have decided.

The state Department of Environmental Quality made that ruling after the company said it would back fill a portion of the pond, returning some of the gravel it had removed and stockpiled during excavation.

"It turns out that we needed to make some changes in the pond construction," said Alan McCormick, a Missoula attorney representing LEMB Co. LLC of Oregon "It's no longer going to make economic sense to crush that gravel on site."

Two weeks ago, state environmental regulators ruled that LEMB needed to obtain an open cut mining permit after it dug the 5-acre pond on its property and stockpiled thousands of yards of gravel nearby.

The permit process would have required an environmental assessment and public comment, and would have required the developer to outline his plans for the property during the process.

In a June 5 letter 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.

In a response last week, DEQ attorney Jane Amdahl said that 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 regulators' initial decision that the company needed a permit in the first place, "this was the conclusion we were seeking."

The company now will focus legal efforts on trying to overturn an injunction for work on the pond at a hearing scheduled for Monday.

The Rock Creek Protective Association sued LEMB in May, alleging the company 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.

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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 hoped to meet with state regulators to protest the ruling that the mining permit is no longer needed.

Menson said the company continues to disregard state requirements during this initial construction phase.

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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