(Note: The following article appears in the July 11, 2019 edition of the Stillwater County News. It is reprinted here with permission of the Publisher. Subscription normally required to read article. To subscribe, click here.)

“Workable framework” adopted for potential southern county zone

“As Stillwater County is in a state of growth, the commission is looking into any and all options to help protect the county against out of control growth. While this may happen through some sort of zoning, it also may not. The commission’s goal is to welcome growth, but make sure it does not negatively effect the county as a whole.”

-County Commission Chairman Mark Crago

A “workable framework” has been adopted by the Stillwater County Planning Board, the latest action in the yearslong process spearheaded by residents to create a zone in the southern end of the county.

 At the July 3 County Planning Board meeting, the Beartooth Front Coalition, a group of citizens from southern Stillwater County, presented a proposal for the creation of a zone that would regulate the surface impacts of oil and gas development.

The County Planning Board is considering the creation of the zone due to a mutual agreement between the Beartooth Front group and the county, who are opposing parties in a lawsuit regarding the invalidation of the group’s petition to create such a zone.

The lawsuit is on hold as the board considers the zone. After much discussion between the public and board members, the proposal was accepted last week by a 5-2 vote of the board and will act as a framework for the future as draft zoning regulations come to the board.

THE FRAMEWORK
The proposal was created by the Beartooth Front group with the assistance of consultant Bob Horne, a retired community planner. The zoning district is to apply to a specific area in southern Stillwater County, and “will regulate oil and gas exploration and production in the interests of public health, safety, and general welfare – it does not prohibit oil and gas facilities in the county,” according to the document.

It is noted that Montana Code 76-2-209 specifically says county zoning “may not prevent the complete use, development, or recovery of any mineral, forest, or agricultural resources by the owner of any mineral, forest, or agricultural resource.”

Horne described this law as a litmus test for any zone to be created.

“This district will set standards that will protect the public from the health hazards often associated with oil and gas development,” the proposal reads. “In addition, this district will provide a mechanism for the county government to evaluate the impacts of oil and gas development on public infrastructure and services, and to recover those costs that are the direct result of oil and gas activity.”

The proposal suggests implementing an oil and gas conditional use permit for interested developers that would be reviewed on a case-by-case basis. The reasoning is laid out in the document:

“Through the conditional use permit process, conditions can be attached to the permit approval to ensure that the conditional use is compatible with its surroundings, and that adverse impacts to the community are avoided.”

Some sample discussion criteria included in the proposal include surface and ground water sampling and monitoring systems, monitoring air emissions, and visual and traffic impacts. The proposal notes that, “Generally, conditions must be reasonable and directly related to the mitigation of an adverse impact and/or to ensure that a given criterion is met.”

The 3-4 month permit process laid out in the proposal includes an application, a conference with the planning office, and then a community informational meeting. After a committee submits recommendations to the Planning Board and a final application is submitted, the Planning Board would conduct a public hearing and adopt a recommendation for the county commissioners. The commissioners would have the final decision on issuing the permit.

The permit system was described by Horne as a way to give the county “a seat at the table.” It sets up an organizational structure to identify impacts and recoup any costs from developers so the taxpayers are not burdened by the cost of fixing infrastructure.

Horne noted that the goal in creating the permit process is not to turn down a large number of permits, and permit denials cannot be arbitrary.

During his lengthy career in planning, Horne said he has seen very few denials of conditional use permits, and those instances came when an applicant refused to meet a criteria.

SUPPORT
About 30 citizens attended the meeting, and several of them voiced support for going forward with the proposal and moving to the next step of the process.

The proposal was described as “well-written” by several Planning Board members, and they also said the framework would be a good starting place to then look over the proposed regulations.

Going forward with the framework and considering the regulations was also noted as being in line with the county commissioners’ wishes, particularly in relation to county-wide zoning.

COUNTY-WIDE ZONING
On Monday in a conversation with the News, Commission Chair Mark Crago expanded on the topic of potential county-wide zoning into which the commissioners are inquiring.

“As Stillwater County is in a state of growth, the commission is looking into any and all options to help protect the county against out of control growth. While this may happen through some sort of zoning, it also may not,” Crago said. “The commission’s goal is to welcome growth, but make sure it does not negatively effect the county as a whole.

“We have questions on a regular basis about solar and wind development, and unlike other counties, we do not have any current regulations that help us in directing these businesses in how they can develop within the county. This is very concerning and needs attention.”

He noted that no decision has yet been made about whether or not the Beartooth Front Zone will be created, and if it does occur, additional decisions about whether it will be its own zone or part of a county-wide zone will also have to take place.

Crago emphasized that “the commission is not trying to be big government and regulate things more, however, we are looking out for the best interests of all of Stillwater County and this is just the beginning phase of finding solutions.”

CONCERNS
County Planning Board President Curt Jacobs voiced concerns about the potential for conflicting or redundant regulations, as well as the administrative costs that could accompany enforcing such a permit system.

The county’s Contract Planner Forrest Mandeville raised the question of missing details in the proposal, such as an appeals process, and Horn reassured the board that enforcement, cost, and additional administrative details would be included in the draft regulations to be brought to the board.

Jacobs and a couple members of the crowd questioned how such a zone would impact mineral rights owners, and lengthy discussion between the crowd and board members followed about how mineral rights owners would be affected, whether it was possible to locate all of the mineral rights owners, and whether it was relevant to consider mineral rights owners when looking at oil and gas surface use regulations.

A DNRC planner with the Southern Land Office in Billings, Jeff Bollman, attended the meeting and said his agency would like state trust lands in southern Stillwater County to not be included within the zone boundary. Bollman noted there is a provision in state law that allows the state to use its land contrary to local zoning, but the preference would be to not have to utilize this provision by being excluded from the zone to begin with.

During the final 5-2 vote to move forward with the framework and accept  proposed drafted regulations, Jacobs and Ray Karls (Molt) voted against the motion. Bob Van Oosten (representative of the Conservation Board), Gary Enstrom (Park City), Karen Heyneman (Fishtail), Rita Westrum (Fishtail), and Carolyn Hutson (Absarokee) voted for the motion. Gerald Edwards, the vice president of the board, was not in attendance.

WHAT’S NEXT
With the working framework adopted, the next step for the County Planning Board is to begin drafting regulations. The Beartooth Front Coalition will undertake the task due to the group’s experience and knowledge in the topic stemming from the years the members have been working to create the zone.

By the end of July, the Beartooth Front group, with Horne’s assistance, will have completed a draft of proposed regulations for the zone. Those regulations will be presented to the County Planning Board at the August meeting.

The proposed regulations will give the board and county planning staff a starting point from which they can hold discussions and make any changes they see fit. A public hearing is expected and board members are planning to bring in a representative of the Montana Board of Oil and Gas before a final decision is made regarding the creation of the zone and regulations.

If the board decides to go forward with the creation of the zone, the finalized proposed regulations will be sent to the county commissioners for final approval or denial. The entire process is expected to take months.

July 23 is the 60-day deadline initially set by the court for the pause in the lawsuit between the Beartooth Front Coalition and Stillwater County. As long as the parties feel progress is being made, they will seek to continue working with the board on the issue rather than through the courts.

Sunset over the Stillwater River, taken from our deck. The proposed zone includes much of the Upper Stillwater.