This rule has been repealed.

(1) "Act" means the Natural Streambed and Land Preservation Act.

(2) "Bed" means the channel occupied by a stream.

(3) "Channel" means the area of a stream measured from mean high water mark to mean high water mark.

(4) "Emergency" means an unforseen event or combination of circumstances that call for immediate action to safeguard life, including human or animal, or property, including growing crops, without giving time for the deliberate exercise of judgment or discretion under the act.

(5) "Immediate banks" means the area above the mean high water mark and directly adjacent to a stream which when disturbed will physically alter or modify the state of a stream in contravention of 75-7-102, MCA.

(6) "Mean high water mark" means the line that water impresses on the land for sufficient periods to cause physical characteristics that distinguish the area below the line from above it. Characteristics of the area below the line include, when appropriate, deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural value.

(7) "Natural perennial flowing stream" means a stream which in the absence of diversion, impoundment, appropriation, or extreme drought flows continuously at all seasons of the year and during dry as well as wet years.

(8) "Plan of operation" means an annual plan for a project of recurring nature that, if approved by the supervisors, authorizes a specific activity for a period not to exceed 10 years.

(a) Form 270 "Notice of Proposed Project" is the application form to be submitted by the applicant to the supervisors for project review.

(b) Form 271 "Arbitration Agreement" is the agreement to be reviewed and agreed to by the applicant prior to district acceptance of Form 270.

(c) Form 272 "Team Member Report" is the form to be used for team members to submit project recommendations to the supervisors.

(d) Form 273 "Supervisor's Decision" is the form to be used to convey the district's decision to the applicant and team members.

(e) Form 274 "Official Complaint" is the form to be used for individuals to notify a district of an activity taking place without written consent of the supervisors.

(f) Form 275 "Notice of Emergency" is the form to be used for individuals to notify a district of projects undertaken during an emergency to safeguard life, property, or growing crops.

(2) A district may add to the standard forms and may create additional forms. Any district modifying or creating additional forms must provide a copy to the department of natural RESOURCES AND CONSERVATION.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2) The district shall review all projects to ensure they are achieved in a manner consistent with the policy set forth in the act. The supervisors, in making their decision to approve, modify, or deny a notice of a proposed project, will determine the purpose of the project and whether the project is a reasonable means of accomplishing the project.

(3) The district may reject notices of proposed projects that are not complete. The time frame starts when the application is accepted by the district.

(2) In order to make a determination, the district must conduct a public meeting to gather information relative to the aquatic and riparian attributes of a stream. Notice of the public meeting shall be publication of a notice in a newspaper of general circulation in the area at least twice with an interval of at least 14 days between the two publication dates. The first notice must be published at least 28 days prior to the meeting.

(3) If after public meeting, the district determines that a stream has no significant aquatic and riparian attributes in need of protection or preservation, the district may exclude the stream, or portion thereof, from jurisdiction of this act by adoption of a district rule.

(2) Projects must be designed and constructed using methods that minimize:

(a) adverse impacts to the stream, both upstream and downstream;

(b) future disturbance to the stream.

(3) All disturbed areas must be managed during construction and reclaimed after construction to minimize erosion.

(4) Temporary structures used during construction must be designed to handle high flows reasonably anticipated during the construction period. Temporary structures must be completely removed from the stream channel at the conclusion of construction and the area must be restored to a natural or stable condition.

(5) Channel alterations must be designed to retain original stream length or otherwise provide hydrologic stability.

(6) Streambank vegetation must be protected except where removal of such vegetation is necessary for the completion of the project. When removal of vegetation is necessary, it must be kept to a minimum.

(7) Riprap, rock, or other material used in a project must be of adequate size, shape, and density and must be properly placed to protect the streambank from erosion.

(8) The district may:

(a) limit the time and duration of construction to minimize impacts to the stream or associated aquatic life;

(b) require the applicant to submit engineering designs when in the district's judgment the project's complexity requires a greater assurance of project stability to minimize impacts to the stream;

(c) require the applicant to provide project completion documentation, which may include photographs.

(9) Unless specifically authorized by the district, the following projects are prohibited:

(a) the placement of road fill material in a stream;

(b) the placement of debris or other materials in a stream where it can erode or float into the stream;

(c) projects that permanently prevent fish migration;

(d) operation of construction equipment in a stream; and

(e) excavation of streambed gravels.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2) (a) 'Alternative' means:

(i) an alternate approach or course of action that would appreciably accomplish the same objectives or results as the proposed action;

(ii) design parameters, mitigation, or controls other than those incorporated into a proposed action by an applicant or by an agency prior to preparation of an EA or draft EIS;

(iii) no action or denial; and

(iv) for agency-initiated actions, a different program or series of activities that would accomplish other objectives or a different use of RESOURCES than the proposed program or series of activities.

(b) The agency is required to consider only alternatives that are realistic, technologically available, and that represent a course of action that bears a logical relationship to the proposal being evaluated.

(3) 'The agency' means the department of natural

(4) 'Applicant' means a person or any other entity who applies to the agency for a grant, loan, subsidy, or other funding assistance, or for a lease, permit, license, certificate, or other entitlement for use or permission to act.

(5) 'Categorical exclusion' refers to a type of action which does not individually, collectively, or cumulatively require an EA or EIS, as determined by rulemaking or programmatic review adopted by the agency, unless extraordinary circumstances, as defined by rulemaking or programmatic review, occur.

(6) 'Compensation' means the replacement or provision of substitute RESOURCES or environments to offset an impact on the quality of the human environment. The agency may not consider compensation for purposes of determining the significance of impacts (see ARM 36.2.523(4) ) .

(7) 'Cumulative impact' means the collective impacts on the human environment of the proposed action when considered in conjunction with other past and present actions related to the proposed action by location or generic type. Related future actions must also be considered when these actions are under concurrent consideration by any state agency through pre-impact statement studies, separate impact statement evaluation, or permit processing procedures.

(8) 'Emergency actions' include, but are not limited to:

(a) projects undertaken, carried out, or approved by the agency to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) emergency repairs to public service facilities necessary to maintain service; and

(c) projects, whether public or private, undertaken to prevent or mitigate immediate threats to public health, safety, welfare, or the environment.

(9) 'Environmental assessment' (EA) means a written analysis of a proposed action to determine whether an EIS is required or to serve one or more of the other purposes described in ARM 36.2.523(2) .

(10) 'Environmental impact statement' (EIS) means the detailed written statement required by section 75-1-201, MCA, which may take several forms:

(a) "Draft environmental impact statement" means a detailed written statement prepared to the fullest extent possible in accordance with 75-1-201(1) (b) (iii) , MCA, and these rules.

(b) "Final environmental impact statement" means a written statement prepared to the fullest extent possible in accordance with 75-1-201, MCA, and ARM 36.2.530 or 36.2.531 and which responds to substantive comments received on the draft environmental impact statement;

(c) "Joint environmental impact statement" means an EIS prepared jointly by more than one agency, either state or federal, when the agencies are involved in the same or a closely related proposed action.

(11) 'Environmental quality council' (EQC) means the council established pursuant to Title 75, chapter 1, MCA, and 5-16-101, MCA.

(12) 'Human environment' includes, but is not limited to biological, physical, social, economic, cultural, and aesthetic factors that interrelate to form the environment. As the term applies to the agency's determination of whether an EIS is necessary (see ARM 36.2.523(1) ) , economic and social impacts do not by themselves require an EIS. However, whenever an EIS is prepared, economic and social impacts and their relationship to biological, physical, cultural and aesthetic impacts must be discussed.

(13) 'Lead agency' means the state agency that has primary authority for committing the government to a course of action or the agency designated by the governor to supervise the preparation of a joint environmental impact statement or environmental assessment.

(14) 'Mitigation' means:

(a) avoiding an impact by not taking a certain action or parts of an action;

(b) minimizing impacts by limiting the degree or magnitude of an action and its implementation;

(c) rectifying an impact by repairing, rehabilitating, or restoring the affected environment; or

(d) reducing or eliminating an impact over time by preservation and maintenance operations during the life of an action or the time period thereafter that an impact continues.

(15) 'Programmatic review' means an analysis (EIS or EA) of the impacts on the quality of the human environment of related actions, programs, or policies.

(16) 'Residual impact' means an impact that is not eliminated by mitigation.

(17) 'Scope' means the range of reasonable alternatives, mitigation, issues, and potential impacts to be considered in an environmental assessment or an environmental impact statement.

(18) 'Secondary impact' means a further impact to the human environment that may be stimulated or induced by or otherwise result from a direct impact of the action.

(19) 'State agency', means an office, commission, committee, board, department, council, DIVISION, bureau, or section of the executive branch of state government.

(1) The agency shall prepare an EIS as follows:

(a) whenever an EA indicates that an EIS is necessary; or

(b) whenever, based on the criteria in ARM 36.2.524, the proposed action is a major action of state government significantly affecting the quality of the human environment.

(2) An EA may serve any of the following purposes:

(a) to ensure that the agency uses the natural and social sciences and the environmental design arts in planning and decision making. An EA may be used independently or in conjunction with other agency planning and decision-making procedures;

(b) to assist in the evaluation of reasonable alternatives and the development of conditions, stipulations or modifications to be made a part of a proposed action;

(c) to determine the need to prepare an EIS through an initial evaluation and determination of the significance of impacts associated with a proposed action;

(d) to ensure the fullest appropriate opportunity for public review and comment on proposed actions, including alternatives and planned mitigation, where the residual impacts do not warrant the preparation of an EIS; and

(e) to examine and document the effects of a proposed action on the quality of the human environment, and to provide the basis for public review and comment, whenever statutory requirements do not allow sufficient time for an agency to prepare an EIS. The agency shall determine whether sufficient time is available to prepare an EIS by comparing statutory requirements that establish when the agency must make its decision on the proposed action with the time required by ARM 36.2.532 to obtain public review of an EIS plus a reasonable period to prepare a draft EIS and, if required, a final EIS.

(3) The agency shall prepare an EA whenever:

(a) the action is not excluded under (5) and it is not clear without preparation of an EA whether the proposed action is a major one significantly affecting the quality of the human environment;

(b) the action is not excluded under (5) and although an EIS is not warranted, the agency has not otherwise implemented the interdisciplinary analysis and public review purposes listed in (2) (a) and (d) through a similar planning and decision-making process; or

(c) statutory requirements do not allow sufficient time for the agency to prepare an EIS.

(4) The agency may, as an alternative to preparing an EIS, prepare an EA whenever the action is one that might normally require an EIS, but effects which might otherwise be deemed significant appear to be mitigable below the level of significance through design, or enforceable controls or stipulations or both imposed by the agency or other government agencies. For an EA to suffice in this instance, the agency must determine that all of the impacts of the proposed action have been accurately identified, that they will be mitigated below the level of significance, and that no significant impact is likely to occur. The agency may not consider compensation for purposes of determining that impacts have been mitigated below the level of significance.

(5) The agency is not required to prepare an EA or an EIS for the following categories of action:

(a) actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review. In the rule or programmatic review, the agency shall identify any extraordinary circumstances in which a normally excluded action requires an EA or EIS;

(b) administrative actions: routine, clerical or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services, and personnel actions;

(c) minor repairs, operations, or maintenance of existing equipment or facilities;

(d) investigation and enforcement: data collection, inspection of facilities or enforcement of environmental standards;

(e) ministerial actions: actions in which the agency exercises no discretion, but rather acts upon a given state of facts in a prescribed manner; and

(f) actions that are primarily social or economic in nature and that do not otherwise affect the human environment.

(a) the severity, duration, geographic extent, and frequency of occurrence of the impact;

(b) the probability that the impact will occur if the proposed action occurs; or conversely, reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;

(c) growth-inducing or growth-inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts;

(d) the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those RESOURCES or values;

(e) the importance to the state and to society of each environmental resource or value that would be affected;

(f) any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or a decision in principle about such future actions; and

(g) potential conflict with local, state, or federal laws, requirements, or formal plans.

(2) An impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are significant, an EIS is not required. An EIS is required if an impact has a significant adverse effect, even if the agency believes that the effect on balance will be beneficial.

(2) For a routine action with limited environmental impact, the contents of an EA may be reflected on a standard checklist format. At the other extreme, whenever an action is one that might normally require an EIS, but effects that otherwise might be deemed significant are mitigated in project design or by controls imposed by the agency, the analysis, format, and content must all be more substantial. The agency shall prepare the evaluations and present the information described in section (3) as applicable and in a level of detail appropriate to the following considerations:

(a) the complexity of the proposed action;

(b) the environmental sensitivity of the area affected by the proposed action;

(c) the degree of uncertainty that the proposed action will have a significant impact on the quality of the human environment;

(d) the need for and complexity of mitigation required to avoid the presence of significant impacts.

(3) To the degree required in (2) above, an EA must include:

(a) a description of the proposed action, including maps and graphs;

(b) a description of the benefits and purpose of the proposed action. If the agency prepares a cost/benefit analysis before completion of the EA, the EA must contain the cost/benefit analysis or a reference to it;

(c) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction or environmental review responsibility for the proposed action and the permits, licenses, and other authorizations required;

(d) an evaluation of the impacts, including cumulative and secondary impacts, on the physical environment. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including, where appropriate: terrestrial and aquatic life and habitats; water quality, quantity, and distribution; geology; soil quality, stability, and moisture; vegetation cover, quantity and quality; aesthetics; air quality; unique, endangered, fragile, or limited environmental RESOURCES; historical and archaeological sites; and demands on environmental RESOURCES of land, water, air and energy;

(e) an evaluation of the impacts, including cumulative and secondary impacts, on the human population in the area to be affected by the proposed action. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including where appropriate, social structures and mores; cultural uniqueness and diversity; access to and quality of recreational and wilderness activities; local and state tax base and tax revenues; agricultural or industrial production; human health; quantity and distribution of employment; distribution and density of population and housing; demands for government services; industrial and commercial activity; locally adopted environmental plans and goals; and other appropriate social and economic circumstances;

(f) a description and analysis of reasonable alternatives to a proposed action whenever alternatives are reasonably available and prudent to consider and a discussion of how the alternative would be implemented;

(g) a listing and appropriate evaluation of mitigation, stipulations, and other controls enforceable by the agency or another government agency;

(h) a listing of other agencies or groups that have been contacted or have contributed information;

(i) the names of persons responsible for preparation of the EA; and

(j) a finding on the need for an EIS and, if appropriate, an explanation of the reasons for preparing the EA. If an EIS is not required, the EA must describe the reasons the EA is an appropriate level of analysis.

(2) An EA is a public document and may be inspected upon request. Any person may obtain a copy of an EA by making a request to the agency. If the document is out-of-print, a copying charge may be levied.

(3) The agency is responsible for providing additional opportunities for public review consistent with the seriousness and complexity of the environmental issues associated with a proposed action and the level of public interest. Methods of accomplishing public review include publishing a news release or legal notice to announce the availability of an EA, summarizing its content and soliciting public comment; holding public meetings or hearings; maintaining mailing lists of persons interested in a particular action or type of action and notifying them of the availability of EAs on such actions; and distributing copies of EAs for review and comment.

(4) For an action with limited environmental impact and little public interest, no further public review may be warranted. However, where an action is one that normally requires an EIS, but effects that otherwise might be deemed significant are mitigated in the project proposal or by controls imposed by the agency, public involvement must include the opportunity for public comment, a public meeting or hearing, and adequate notice. The agency is responsible for determining appropriate methods to ensure adequate public review on a case by case basis.

(5) The agency shall maintain a log of all EAs completed by the agency and shall submit a list of any new EAs completed to the office of the governor and the environmental quality council on a quarterly basis. In addition, the agency shall submit a copy of each completed EA to the EQC.

(6) The agency shall consider the substantive comments received in response to an EA and proceed in accordance with one of the following steps, as appropriate:

(a) determine that an EIS is necessary;

(b) determine that the EA did not adequately reflect the issues raised by the proposed action and issue a revised document; or

(c) determine that an EIS is not necessary and make a final decision on the proposed action, with appropriate modification resulting from the analysis in the EA and analysis of public comment.

(2) To identify the scope of an EIS, the agency shall:

(a) invite the participation of affected federal, state, and local government agencies, Indian tribes, the applicant, if any, and interested persons or groups;

(b) identify the issues related to the proposed action that are likely to involve significant impacts and that will be analyzed in depth in the EIS;

(c) identify the issues that are not likely to involve significant impacts, thereby indicating that unless unanticipated effects are discovered during the preparation of the EIS, the discussion of these issues in the EIS will be limited to a brief presentation of the reasons they will not significantly affect the quality of the human environment; and

(d) identify those issues that have been adequately addressed by prior environmental review, thereby indicating that the discussion of these issues in the EIS will be limited to a summary and reference to their coverage elsewhere; and

(e) identify possible alternatives to be considered.

(1) The agency shall prepare EISs that are analytic rather than encyclopedic.

(2) The agency shall discuss the impacts of a proposed action in a level of detail that is proportionate to their significance. For other than significant issues, an EIS need only include enough discussion to show why more study is not warranted.

(3) The agency shall prepare with each draft and final EIS a brief summary that is available for distribution separate from the EIS. The summary must describe:

(a) the proposed action being evaluated by the EIS, the impacts, and the alternatives;

(b) areas of controversy and major conclusions;

(c) the tradeoffs among the alternatives; and

(d) the agency's preferred alternative, if any.

(1) a description of the proposed action, including its purpose and benefits;

(2) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction and a description of their responsibility for the proposed action;

(3) a description of the current environmental conditions in the area affected by the proposed action or alternatives, including maps and charts, whenever appropriate. The description must be no longer than is necessary to understand the effects of the action and alternatives. Data analysis must be commensurate with the importance of the impact with less important material summarized, consolidated, or simply referenced;

(4) a description of the impacts on the quality of the human environment of the proposed action including:

(a) the factors listed in (3) (d) and (e) of ARM 36.2.525, whenever appropriate;

(b) primary, secondary, and cumulative impacts;

(c) potential growth-inducing or growth-inhibiting impacts;

(d) irreversible and irretrievable commitments of environmental resources, including land, air, water and energy;

(e) economic and environmental benefits and costs of the proposed action; and

(f) the relationship between local short-term uses of man's environment and the effect on maintenance and enhancement of the long-term productivity of the environment. Where a cost-benefit analysis is prepared by the agency prior to the preparation of the draft EIS, it shall be incorporated by reference in or appended to the EIS;

(5) an analysis of reasonable alternatives to the proposed action, including the alternative of no action and other reasonable alternatives that may or may not be within the jurisdiction of the agency to implement, if any;

(6) a discussion of mitigation, stipulations, or other controls committed to and enforceable by the agency or other government agency;

(7) a discussion of any compensation related to impacts stemming from the proposed action;

(8) an explanation of the tradeoffs among the reasonable alternatives;

(9) the agency's preferred alternative, if any, and its reasons for the preference;

(10) a section on consultation and preparation of the draft EIS that includes the following:

(a) the names of those individuals or groups responsible for preparing the EIS;

(b) a listing of other agencies, groups, or individuals who were contacted or contributed information; and

(c) a summary list of source materials used in the preparation of the draft EIS;

(11) a summary of the draft EIS as required in ARM 36.2.528; and

(12) other sections that may be required by other statutes in a comprehensive evaluation of the proposed action, or by the National Environmental Policy Act or other federal statutes governing a cooperating federal agency.

(2) In the event the agency determines to adopt the draft EIS, the agency shall notify the governor, the environmental quality council, the applicant, if any, and all commenters of its decision and provide a statement describing its proposed course of action. This notification must be accompanied by a copy of all comments or a summary of a representative sample of comments received in response to the draft statement, together with, at minimum, an explanation of why the issues raised do not warrant the preparation of a final EIS.

(3) The agency shall provide public notice of its decision to adopt the draft EIS as a final EIS.

(4) If the agency decides to adopt the draft EIS as the final EIS, it may make a final decision on the proposed action no sooner than 15 days after complying with subsections (1) through (3) above.

(1) a summary of major conclusions and supporting information from the draft EIS and the responses to substantive comments received on the draft EIS, stating specifically where such conclusions and information were changed from those which appeared in the draft;

(2) a list of all sources of written and oral comments on the draft EIS, including those obtained at public hearings, and, unless impractical, the text of comments received by the agency (in all cases, a representative sample of comments must be included) ;

(3) the agency's responses to substantive comments, including an evaluation of the comments received and disposition of the issues involved;

(4) data, information, and explanations obtained subsequent to circulation of the draft; and

(5) the agency's recommendation, preferred alternative, or proposed decision together with an explanation of the reasons therefor.

(2) The listed transmittal date to the governor and the EQC must not be earlier than the date that the draft EIS is mailed to other agencies, organizations, and individuals. The agency shall allow 30 days for reply, provided that the agency may extend this period up to an additional 30 days at its discretion or upon application of any person for good cause. When preparing a joint EIS with a federal agency or agencies, the agency may also extend this period in accordance with time periods specified in regulations that implement the National Environmental Policy Act. However, no extension which is otherwise prohibited by law may be granted.

(3) In cases involving an applicant, after the period for comment on the draft EIS has expired, the agency shall send to the applicant a copy of all written comments that were received. The agency shall advise the applicant that he has a reasonable time to respond in writing to the comments received by the agency on the draft EIS and that the applicant's written response must be received before a final EIS can be prepared and circulated. The applicant may waive his right to respond to the comments on the draft EIS.

(4) Following preparation of a final EIS, the agency shall distribute copies to the governor, EQC, appropriate state and federal agencies, the applicant, if any, persons who submitted comments on or received a copy of the draft EIS, and other members of the public upon request.

(5) Except as provided by ARM 36.2.530(4) , a final decision must not be made on the proposed action being evaluated in a final EIS until 15 days have expired from the date of transmittal of the final EIS to the governor and EQC. The listed transmittal date to the governor and EQC must not be earlier than the date that the final EIS is mailed to other agencies, organizations, and individuals.

(6) All written comments received on an EIS, including written responses received from the applicant, must be made available to the public upon request.

(7) Until the agency reaches its final decision on the proposed action, no action concerning the proposal may be taken that would:

(a) have an adverse environmental impact; or

(b) limit the choice of reasonable alternatives, including the no-action alternative.

(1) The agency shall prepare supplements to either draft or final environmental impact statements whenever:

(a) the agency or the applicant makes a substantial change in a proposed action;

(b) there are significant new circumstances, discovered prior to final agency decision, including information bearing on the proposed action or its impacts that change the basis for the decision; or

(c) following preparation of a draft EIS and prior to completion of a final EIS, the agency determines that there is a need for substantial, additional information to evaluate the impacts of a proposed action or reasonable alternatives.

(2) A supplement must include, but is not limited to, a description of the following:

(a) an explanation of the need for the supplement;

(b) the proposed action; and

(c) any impacts, alternatives or other items required by ARM 36.2.529 for a draft EIS or ARM 36.2.531 for a final EIS that were either not covered in the original statement or that must be revised based on new information or circumstances concerning the proposed action.

(3) The same time periods applicable to draft and final EISs apply to the circulation and review of supplements.

(a) that the existing EIS covers an action paralleling or closely related to the action proposed by the agency or the applicant;

(b) on the basis of its own independent evaluation, that the information contained in the existing EIS has been accurately presented; and

(c) that the information contained in the existing EIS is applicable to the action currently being considered.

(2) A summary of the existing EIS or the portion adopted and a list of places where the full text is available must be circulated as a part of the EIS and treated as part of the EIs for all purposes, including, if required, preparation of a final EIS.

(3) Adoption of all or part of an existing EIS does not relieve the agency of the duty to comply with ARM 36.2.529.

(4) The same time periods applicable to draft and final EISs apply to the circulation and review of EISs that include material adopted from an existing EIS.

(5) The agency shall take full responsibility for the portions of a previous EIS adopted. If the agency disagrees with certain adopted portions of the previous EIS, it shall specifically discuss the points of disagreement.

(6) No material may be adopted unless it is reasonably available for inspection by interested persons within the time allowed for comment.

(7) Whenever part of an existing EIS or concurrently prepared EIS is adopted, the part adopted must include sufficient material to allow the part adopted to be considered in the context in which it was presented in the original EIS.

(a) request the participation of other governmental agencies which have special expertise in areas that should be addressed in the EIS;

(b) allocate assignments, as appropriate, for the preparation of the EIS among other participating agencies; and

(c) coordinate the efforts of all affected agencies.

(2) Whenever participation of the agency is requested by a lead agency, the agency shall make a good-faith effort to participate in the EIS as requested, with its expenses for participation in the EIS paid by the lead agency or other agency collecting the EIS fee if one is collected.

(2) The agency shall cooperate with federal and local agencies in preparing EISs when the jurisdiction of the agency is involved. This cooperation may include, but is not limited to: joint environmental research studies, a joint process to determine the scope of an EIS, joint public hearings, joint EISs, and, whenever appropriate, joint issuance of a record of decision.

(3) Whenever the agency proposes or participates in an action that requires preparation of an EIS under both the National Environmental Policy Act and MEPA, the EIS must be prepared in compliance with both statutes and associated rules and regulations. The agency may, if required by a cooperating federal agency, accede to and follow more stringent requirements, such as additional content or public review periods, but in no case may it accede to less than is provided for in these rules.

(4) The same general provisions for cooperation and joint issuance of documents provided for in this rule in connection with EISs also apply to EAs.

(2) The agency may also prepare a programmatic review whenever required by statute, whenever a series of actions under the jurisdiction of the agency warrant such an analysis as determined by the agency, or whenever prepared as a joint effort with a federal agency requiring a programmatic review.

(3) The agency shall determine whether the programmatic review takes the form of an EA or an EIS in accordance with the provisions of ARM 36.2.523 and 36.2.524, unless otherwise provided by statute.

(4) A programmatic review must include, as a minimum, a concise, analytical discussion of alternatives and the cumulative environmental effects of these alternatives on the human environment. In addition programmatic reviews must contain the information specified in ARM 36.2.529 for EISs or ARM 36.2.525 for EAs, as applicable.

(5) The agency shall adhere to the time limits specified for distribution and public comment on EISs or EAs, whichever is applicable.

(6) While work on a programmatic review is in progress, the agency may not take major state actions covered by the program in that interim period unless such action:

(a) is part of an ongoing program;

(b) is justified independently of the program; or

(c) will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program if it tends to determine subsequent development or foreclose reasonable alternatives.

(7) Actions taken under subsection (6) must be accompanied by an EA or an EIS, if required.

(2) The agency may include in the final EIS, in addition to a statement of its proposed decision, preferred alternative, or recommendation on the proposed action, the other items required by (1) , and additional explanation as provided for in (3) below. If the final decision and the reasons for that final decision are the same as set forth in the final EIS, the agency may comply with (1) by preparing a public notice of what the decision is and adopting by reference the information contained in the final EIS that addresses the items required by (1) . If the final decision or any of the items required by (1) are different from what was presented in the final EIS, the agency is responsible for preparing a separate record of decision.

(3) There is no prescribed format for a record of decision, except that it must include the items listed in (1) . The record may include the following items as appropriate:

(a) brief description of the context of the decision;

(b) the alternatives considered;

(c) advantages and disadvantages of the alternatives;

(d) the alternative or alternatives considered environmentally preferable;

(e) short and long-term effects of the decision;

(f) policy considerations that were balanced and considered in making the decision;

(g) whether all practical means to avoid or minimize environmental harm were adopted, and if not, why not; and

(h) a summary of implementation plans, including monitoring and enforcement procedures for mitigation, if any.

(4) This rule does not define or affect the statutory decision making authority of the agency.

(2) The agency has a continuing responsibility to review its programs and activities to evaluate known or anticipated conflicts between these rules and other statutory or regulatory requirements. It shall make such adjustments or recommendations as may be required to ensure maximum compliance with MEPA and these rules.

(2) A person contracting with the agency in the preparation of an EIS must execute a disclosure statement, in affidavit form prepared by the agency, specifying that he has no financial or other interest in the outcome of the proposed action other than a contract with the agency.

(2) In addition to the procedure in (1) above, the agency shall take such other steps as are reasonable and appropriate to promote the awareness by interested parties of a scheduled hearing.

(3) The agency shall hold a public hearing whenever requested within 20 days of issuance of the draft EIS by either:

(a) 10% or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(b) by another agency which has jurisdiction over the action;

(c) an association having not less than 25 members who will be directly affected by the proposed action: or

(d) the applicant, if any.

(4) In determining whether a sufficient number of persons have requested a hearing as required by subsection (3) , the agency shall resolve instances of doubt in favor of holding a public hearing.

(5) No person may give testimony at the hearing as a representative of a participating agency. Such a representative may, however, at the discretion of the hearing officer, give a statement regarding his or her agency's authority or procedures and answer questions from the public.

(6) Public meetings may be held in lieu of formal hearings as a means of soliciting public comment on an EIS where no hearing is requested under (3) above. However, the agency shall provide adequate advance notice of the meeting; and, other than the degree of formality surrounding the proceedings, the objectives of such a meeting are essentially the same as those for a hearing.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2) If a hearing is held on the fee assessed as authorized by this rule, the department shall proceed with its analysis of the project wherever possible. The fact that a hearing has been requested shall not be grounds for delaying consideration of an application except to the extent that the portion of the fee in question affects the ability of the department to collect the data and information necessary for the EIS.

This rule has been repealed.

(1) Whenever an application for a lease, permit, contract, license, or certificate is expected to result in the agency incurring expenses in excess of $2,500 to compile an EIS, the applicant is required to pay a fee in an amount the agency reasonably estimates, as set forth in this rule, will be expended to gather information and data necessary to compile an EIS.

(2) The agency shall determine within 30 days after a completed application is filed whether it will be necessary to compile an EIS and assess a fee as prescribed by this rule. If it is determined that an EIS is necessary, the agency shall make a preliminary estimate of its costs. This estimate must include a summary of the data and information needs and the itemized costs of acquiring the data and information, including salaries, equipment costs, and any other expense associated with the collection of data and information for the EIS.

(3) Whenever the preliminary estimated costs of acquiring the data and information to prepare an EIS total more than $2,500, the agency shall notify the applicant that a fee must be paid and submit an itemized preliminary estimate of the cost of acquiring the data and information necessary to compile an EIS. The agency shall also notify the applicant to prepare and submit a notarized and detailed estimate of the cost of the project being reviewed in the EIS within 15 days. In addition, the agency shall request the applicant to describe the data and information available or being prepared by the applicant which can possibly be used in the EIS. The applicant may indicate which of the agency's estimated costs of acquiring data and information for the EIS would be duplicative or excessive. The applicant must be granted, upon request, an extension of the 15 day period for submission of an estimate of the project's cost and a critique of the agency's preliminary EIS data and information accumulation cost assessment.

(2) If an applicant believes that the fee assessed is excessive or does not conform to the requirements of this rule or Title 75, chapter 1, part 2, MCA, the applicant may request a hearing pursuant to the contested case provisions of the Montana Administrative Procedure Act. If a hearing is held on the fee assessed as authorized by this subsection, the agency shall proceed with its analysis of the project wherever possible. The fact that a hearing has been requested is not grounds for delaying consideration of an application except to the extent that the portion of the fee in question affects the ability of the department to collect the data and information necessary for the EIS.

(2) Whenever the agency has completed work on the EIS, it shall submit to the applicant a complete accounting of how any fee was expended. If the money expended is less than the fee collected, the remainder of the fee shall be refunded to the applicant without interest within 45 days after work has been completed on the final EIS.

(2) Each division of the department shall provide continuing policy, program, and technical information at the earliest practical times and at places easily accessible to interested or affected persons and organizations so that they can make informed and constructive contributions to department decision making. News releases and other publications may be used for this purpose as well as informational discussions and meetings with interested citizens' groups. Efforts shall be made to summarize complex technical materials for public and media use.

(3) Each division shall have a procedure for providing technical and informational assistance to public groups for citizen education, committee workshop training, dissemination of information to concerned groups and individuals. Requests for information shall be promptly handled.

(4) Each division of the department shall have a procedure for early consultation and exchange of views with interested or affected persons and organizations on development or revision of plans, programs, or other significant activity prior to decision making. Advisory groups, ad hoc committees or workshop meetings may serve this purpose.

(5) Field demonstrations and public field trips may be used when there is sufficient public interest concerning programs administered by the department.

(6) Each division shall maintain a current list of interested persons and organizations including any who have requested inclusion on such list, for the distribution of information such as that listed in subsection (2) (1) (a) of this rule. The department shall, in addition, notify any interested persons of any public hearing or other decision making proceedings prior to decision making and wherever possible shall supplement this notification with informal notice to all interested persons or groups having requested such notice in advance. The notice provisions of this subsection shall be deemed to have been complied with if:

(a) an environmental impact statement or preliminary environmental review is prepared and distributed in accordance with the Montana Environmental Policy Act, and the rules adopted pursuant thereto;

(b) a proceeding is held as required by the Montana Administrative Procedure Act;

(c) a public hearing, after appropriate notice is given, is held pursuant to agency discretion, any other provision of state law, or local ordinance or resolution; or

(d) a newspaper of general circulation within the area to be affected by a decision of significant interest to the public has carried a news story, notice or advertisement concerning the decision prior to a final decision on a matter.

(7) The department files, other than personnel files and those files required by law or requirements of individual privacy to remain confidential, are open to public inspection. These files are located at the department office in Helena. Copies of specific documents are available either free or for a reasonable copying charge.

(8) When the department determines that a proposed decision or action is of significant interest to the public, one person shall be designated as contact person with the public on the proposed decision or action. This person should be a departmental employee familiar with the proposed decision or action.

(9) The listing of specific measures in this section shall not preclude additional techniques for obtaining, encouraging or assisting public participation.

(1) "Antiquities" means heritage properties or paleontological remains.

(2) "Department" means the Montana department of natural resources and conservation.

(3) "Effect" means a change in the integrity of location, design, materials, workmanship, feeling or association of an antiquity that contributes to its significance. The term includes isolation from or alteration of the surrounding environment, neglect of the property resulting in its deterioration or destruction, transfer or sale without adequate conditions or restrictions regarding preservation, maintenance or use, and destruction or alteration, either partial or total. For heritage properties only, the term includes introduction of visual, audible or atmospheric elements that are out of character with the property or alter its setting.

(4) "Emergency actions" include, but are not limited to:

(a) projects to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) repairs to public service facilities necessary to maintain service; or

(c) projects, whether public or private, undertaken to prevent or mitigate immediate threats to public health, safety, welfare, or the environment.

(5) "Department action" means the department's decision to deny or approve an application for an easement, lease, or other certificate necessary for conducting activity upon or beneath the surface of state lands or under water on state lands if the approved activity will or might have an effect on antiquities or the department decision to proceed with an action that will or might have an effect on antiquities. "Department action" does not include decisions regarding a state mineral estate where the surface estate is not in state ownership.

(6) "Known antiquities" means antiquities on record with SHPO, the department, or the Montana statewide archeology files.

(7) "Heritage property" means any district, site, building, structure or object located upon or beneath the earth or under water that is significant in American history, architecture, archaeology or culture.

(8) "Paleontological remains" means fossilized plants and animals of a geological nature found upon or beneath the earth or under water which are rare and critical to scientific research.

(9) "SHPO" means the historic preservation office provided for in 2-15-1512, MCA.

(10) "Significant" as used in (7) above, means the quality in American history, architecture, archeology, or culture that is present in districts, sites, structures, or objects of state and local importance that possess integrity of location, design, setting, materials, workmanship, feeling, and association and:

(a) that are associated with events that have made a significant contribution to the broad patterns of our history;

(b) that are associated with the lives of persons significant in our past;

(c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(d) that have yielded, or may be likely to yield, information important in prehistory or history.

(a) a description of the proposed department action;

(b) a legal description of the state lands affected by the proposed action;

(c) a description of the previous use and classification of the lands;

(d) physical characteristics of the proposed action area, including slope, vegetation, availability of game, and proximity of water, if known, and a topographic map, if available;

(e) known antiquities and districts, sites, structures, and objects that the department determines may be antiquities on the affected state lands;

(f) the effect on known antiquities and districts, sites, structures, and objects listed pursuant to (1) (e) above; and

(g) proposed mitigation or evaluation measures to be taken by the department, if any, prior to or following the approval of the action.

(2) If the proposed action involves changes to, or removal of an existing structure, or feature, the department shall also provide the following to SHPO:

(a) photographs of the structure or feature; and

(b) information, including dates, on construction, construction materials and their origin, dimensions, previous use, alterations, integrity of setting, and physical integrity of the structure, if available.

(3) In the initial consultation, the department shall request SHPO to:

(a) determine whether the state lands to be affected by the department action have been adequately surveyed and an adequate record of antiquities and other sites, structures, and objects prepared;

(b) recommend whether a professional survey of the state lands to be affected by the department action should be conducted prior to the proposed action;

(c) determine the relative value of any districts, sites, structures, and objects identified under (1) (e) above; and

(d) review the department's proposed mitigation plan, if any, and recommend appropriate mitigation or avoidance actions, if any, necessary to protect known antiquities on state lands, including:

(i) monitoring of the proposed action;

(ii) special protective stipulations to the project approval, including data retrieval, recordation, or interpretation;

(iii) modification of project design to avoid disturbances of known antiquities sites;

(iv) abandonment of the proposed project; or

(v) data retrieval and recordation of the antiquity if the effect is unavoidable.

(4) If the department receives no consultation response from SHPO within 10 working days from delivery of its request, the department shall consider SHPO consultation complete and may proceed with consideration of the proposed department action. The department may extend this deadline for large or complex consultation requests.

If SHPO responds to the department's initial consultation request, the department shall consider that response and determine if actions other than those proposed in its initial consultation request pursuant to ARM 36.2.803(1) (g) are appropriate. The determination of whether to implement SHPO's recommendations rests solely with the department. The department shall follow the following procedure:

(1) If SHPO recommends a professional antiquities survey and:

(a) the department accepts that recommendation, the department shall cause a survey to be conducted and conduct a post-survey consultation in accordance with ARM 36.2.805; or

(b) the department rejects that recommendation, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of the antiquities that will be required. The department may not proceed with the proposed action until five working days after written notice to SHPO. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities.

(2) If SHPO's response does not include a recommendation for a professional antiquities survey and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, proceed with the department action, and implement the recommendations; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department within those five working days receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation measures and the action.

(2) Unless the department receives comments from SHPO regarding its assessment and proposal for mitigation, avoidance, or documentation within 15 working days of the delivery of the department's assessment and proposal to SHPO, the department may consider the consultation complete and may proceed with its consideration of the proposed action. The department may extend this deadline for those assessments that involve large or complex proposals.

(3) If SHPO responds to the consultation request within the time limits and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, implement the recommendations, proceed with the department action; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing documenting therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation and the action.

(4) The determination of whether to implement SHPO's recommendations rests solely with the department.

(2) If a determination that no antiquities are present was made prior to commencement of a project, but possible antiquities are subsequently discovered during implementation of the agency action, the department shall:

(a) cause work on the project that could alter the possible antiquities to immediately halt and not resume until the consultation process is completed;

(b) conduct a preliminary evaluation to determine whether the properties identified are antiquities and, if so, appropriate protection or mitigation measures;

(c) notify SHPO of the discovery and request concurrence with preliminary evaluations and any mitigation measures proposed.

(3) If the department does not receive a response from SHPO within five working days, the department may consider the consultation complete and may resume the project with whatever mitigation or protective measures it considers appropriate. The department may extend this deadline for these assessments that involve large or complex discoveries.

(4) If SHPO files with the department within five days an assessment identifying antiquities, the department shall follow the procedures for the consideration of antiquities contained in ARM 36.2.804 prior to resumption of the project.

(1) As provided in 22-3-432, MCA, no person may excavate, remove, or restore any antiquities on state land administered by the department unless he has secured an antiquities permit from SHPO.

(1) "Board" means the board of land commissioners provided for in Article X, section 4 of the Constitution of this state.

(2) "Central record repository" means the site at the department of natural resources and conservation at which all ownership records will be stored.

(3) "Department" means the department of natural resources and conservation.

(4) "Director" means the director of the department of natural resources and conservation.

(1) The department shall make available a copy of each state agency's land ownership no more than once a year to the administering agency.

(1) All state agencies within sixty days of acquiring or disposing of state lands shall be required to provide to the department an accurate record of such transaction. At the same time an agency provides the department with ownership records regarding acquisition or disposal of state lands, they must

(a) a legal description of the land;

(b) when the land was acquired or disposed of;

(c) name of the state agency administering or disposing of the land;

(d) name of the grantor and grantee of the land;

(e) a completed record of all subsurface and mineral rights on the land.

(2) In lieu of providing the above information on a written form, the department may require the state agency to provide the information into a computer data base in a format determined by the department.

(3) Prior to the department accepting any ownership records, the agency supplying such records must properly record them in the county wherein the lands are located.

(4) It shall be the responsibility of the transferring state agency to notify the department of any discrepancies to insure that all lands on record with the department are correct to the best of the state agency's knowledge.

(a) Leases are classified as agricultural and grazing, commercial, and non-commercial; oil, gas, coal, gravel, borrow, uranium, metalliferous, and nonmetalliferous prospecting and production; other similar uses.

(b) Rights-of-way and easements are classified as public and private highways, streets, ditches, reservoirs, railroads, roads, telegraph, telephone and electric power lines; projects for flood control, river regulation, conservation of water, irrigation, reclamation; sites for schoolhouses, parks, community buildings, and cemeteries; other similar uses.

(c) Permits and licenses are classified as gravel, shale, borrow, and riprap production; signs, landfill dumps, temporary access, and prospecting; other similar uses.

(2) The actual forms of leases, rights-of-way and easements, and permits and licenses are written for each specific use and are modified as necessary. The forms have been omitted as their publication would have been unduly cumbersome, expensive and otherwise inexpedient. Requests for copies of the forms and inquiries regarding leases, rights-of-way and easements, and permits and licenses may be addressed to the director. Application requirements are as prescribed by the department not inconsistent with law and the rules of the board.

The department of natural resources and conservation shall collect the following non-refundable administrative fees:

(1) Grazing/Agriculture Lease Application                                                       $25.00

(2) Grazing/Agriculture Lease Assignment                                                        50.00

(3) Grazing/Agriculture Sublease Application                                                    25.00

(4) Grazing/Agriculture Collateral Assignment                                                 $25.00

(5) Grazing/Agriculture Lease Renewal Application                                          25.00

(6) Seismic Permit Application                                                                            50.00

(7) Oil and Gas Lease Application                                                                      15.00

(8) Oil and Gas Lease Issuance                                                                           25.00

(9) Oil and Gas Lease Assignment                                                                      25.00

(10) Oil and Gas Unit Agreement Issuance                                                         25.00

(11) All other Mineral Lease Application                                                              50.00

(12) All other Mineral Lease Renewal Application                                              25.00

(13) All other Mineral Lease Assignments                                                           50.00

(14) Sand, Gravel, et al Permit Application                                                         25.00

(15) Geothermal Lease Application                                                                     25.00

(16) Geothermal Lease Renewal Application                                                     25.00

(17) Geothermal Lease Assignment                                                                    25.00

(18) Homesite/Cabinsite Lease Application                                                       25.00

(19) Homesite/Cabinsite Lease Renewal Application                                       25.00

(20) Homesite/Cabinsite Lease Assignment                                                      25.00

(21) Commercial Lease Application                                                                    50.00

(22) Commercial Lease Renewal                                                                         50.00

(23) Commercial Lease Assignment                                                                    50.00

(24) Special Land Use License Application                                                        25.00

(25) Special Land Use License Assignment                                                       25.00

(26) Special Land Use License Renewal                                                             25.00

(27) Private Land Exchange Application                                                            100.00

(28) Land Sale Application                                                                                  100.00

(29) Land Sale Contract Issuance                                                                         50.00

(30) Land Sale Patent Issuance                                                                             50.00

(31) Land Sale Assignment (Contract or Patent)                                                 50.00

(32) Land Sale Reinstatement                                                                               50.00

(33) Easement Application                                                                                     50.00

(34) Easement Assignment                                                                                    50.00

(35) Certified Copy of original                                                                                10.00

(36) Other copies documents (per page)                                                                1.00

(37) Computer charges $10.00 minimum or Actual Cost plus

10% handling.

(38) Pasturing Agreement Application 25.00

(2) Acreage of access roads shall be included in all homesite or farmyard leases and shall be classified as the homesite or farmyard acreage is classified.

(3) A homesite is defined as land occupied or to be occupied by a dwelling, whether temporary or principal place of residence, and the supporting buildings in the immediate vicinity, if any.

(4) The department shall chain, or measure in feet, the area to be included in the lease. Each corner of the homesite, or farmyard, shall be identified by a method to be determined by the department.

(a) A plat shall be made that will include all measurements and identified corners.

(b) The plat will include, with other information, the locations, width and length of the access road.

(c) Final lease acreage computation will be computed by the department.

(d) Acres will be identified in terms of acres within the smallest legal description possible. (Example: 7.80 acres within the SW¼NE¼SW¼, of section, township, range.)

(e) Acres in access road, if applicable, will be computed separately but will be included in total lease acres.

(2) The $100.00 land charge minimum shall apply regardless of the amount of state ownership within a section. The state shall also collect the amount of the actual damages resulting to the remaining land or lands from the granting of an easement as nearly as the damages can be ascertained.