BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

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Please contact Loryn Johnson, paralegal, at the Department of Environmental Quality at (406) 444-1388 or Loryn.Johnson2@mt.gov should you encounter any difficulties.

2. The Department of Environmental Quality will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Environmental Quality no later than 5:00 p.m. on September 11, 2023, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQSubDivRuleUpdate@mt.gov.

NEW RULE I CERTIFICATION OF INDEPENDENT REVIEWERS AS THE REVIEWING AUTHORITY (1) An engineer or sanitarian may be certified as an independent reviewer to review files under 76-4-104(4), MCA, subject to the requirements in this rule.

(2) An engineer or sanitarian must complete the following before becoming certified as an independent reviewer to perform subdivision reviews:

(a) complete a training program developed by the department; and

(b) pass, with a score of at least 90 percent, a written examination administered by the department that demonstrates knowledge of:

(i) Title 76, chapter 4, MCA;

(ii) this chapter;

(iii) applicable department circulars;

(iv) Title 75, chapter 5, MCA;

(v) ARM Title 17, chapter 30, subchapters 5 and 7; and

(vi) other applicable laws and regulations.

(3) An independent reviewer is subject to the limitations and requirements set forth in 76-4-104(12) through (15), MCA. 

(4) To maintain certification, an independent reviewer must have completed at least one subdivision review in the preceding two years. Independent reviewers who have not completed at least one subdivision review in the preceding two years shall satisfy the requirements in (2)(b) prior to performing subdivision review.

(5) The department may suspend or revoke the certification of an independent reviewer if the department determines that the independent reviewer has not complied with the Sanitation in Subdivisions Act or other applicable statutes or rules.

NEW RULE II SUBDIVISIONS EXEMPT FROM MEPA REVIEW (1) A department action under this subchapter is exempt from conducting an environmental review under Title 75, chapter1, parts 1 and 2, MCA, if the subdivision meets the criteria in [SB 240].

(2) To qualify for this exemption, the applicant must submit a detailed explanation and supporting documentation and maps that demonstrate compliance with the criteria in [SB 240].

            (2) A facility previously approved by a local reviewing authority but not under Title 76, chapter 4, MCA, is not subject to review if the applicant submits evidence that the facility:

(a) meets the criteria in (1);

(b) complies with all required setbacks in ARM 17.36.323; and

(c) if the lot was created after the effective dates for mixing zones and well isolation zones, complies with all required setbacks in ARM 17.36.122.

(2) through (6) remain the same but are renumbered (3) through (7).

REASON: SB 285 from the 2023 legislative session required the department to provide a basis for exempting from review facilities previously approved by a local reviewing authority if certain enumerated criteria were met. Proposed (2) establishes the statutorily prescribed procedure in rule. Proposed (2)(a) requires compliance with the criteria in (1)(a) through (c) because those are the same criteria mandated by SB 285. The bill also required compliance with setback rules, and (2)(b) and (c) are necessary to provide cross-references to the relevant setback requirements.

            (4) Subject to the criteria in (2) and (3), a municipal or county water and/or sewer district must accept a connection request from a proposed subdivision and make public wastewater service available if requested by an applicant if:

(a) any boundary of the subdivision is within 1000 feet of any component of a public municipal or county sewer district wastewater system; and

(b) any boundary of the subdivision borders surface water or where surface water is present or the subdivision is unable to pass the nonsignificance criteria in 75-5-301, MCA, for surface water impacts.

(5) In addition to new water and sewer facilities in (1), this rule applies to rewrites of certificates of subdivision approval that include an increase in water or wastewater flows or load and to reviews of lots that were created under ARM 17.36.605(2)(a).

REASON: SB 215 of the 2023 legislative session required the department to adopt rules requiring connection to an existing municipal or county sewer district main if any boundary of the subdivision is less than 1000 feet of the municipal or county sewer district mains, if the boundary of the subdivision is adjacent to surface waters, or if the subdivision fails the nonsignificance analysis in Title 75, chapter 5, MCA, and the parent system has adequate capacity and water rights to meet the needs of the subdivision.  Proposed (5) clarifies that this rule also applies to rewrites to existing certificates of subdivision approval that increase water demand or wastewater volume or load and to lots created with the ARM 17.36.605(2)(a) exclusion. Increasing water demand or wastewater volume or load, such as by the addition of a second dwelling unit or expansion of the capacity of a commercial unit, will have similar impacts as new sewage disposal facilities and should be subject to this rule. Likewise, development of lots that were initially created under the no-facilities exclusion under ARM 17.36.605(2)(a) will have similar impacts and should be subject to this rule. 

            (6) The reviewing authority shall exempt the The requirements of (1), (2), (3), and (4) are not required for either of under the following circumstances:

(a) subdivisions located entirely within a first-class or second-class municipality, as described in 7-1-4111, MCA, or within a Municipal Separate Storm Sewer System (MS4) general permit area, as defined in ARM 17.30.1102, if:

(i) remains the same.

(ii) the municipal or MS4 entity either accepts the stormwater into a municipal storm water system or requires the applicant to comply with municipal or MS4 storm water drainage design standards.;

(b) lots 5 acres or larger in size if the applicant provides information demonstrating that the total impervious area on the lot will be less than 5% of the lot area, including easements and right-of-ways.; or

(c) lots that are exempt from review under 76-3-207(1)(a), (d), (e), or (f), MCA, if the parcels are used for one living unit and no more than 25% of each qualifying parcel is impervious.  To qualify for this exemption, the applicant must provide an estimate of each parcel's total impervious area and verification of the intended use. A change in the percentage of impervious area beyond 25% or changing from more than one living unit will require review. 

(a) cut systems;

(b) fill systems;

(c) through (g) remain the same but are renumbered (a) through (e).

(2) A municipality is eligible to be a certifying authority under 76-4-127, MCA, if the municipality:

(a) remains the same.

(b) is a first or second class municipality or is within a jurisdictional area covered by a growth policy pursuant to Title 76, chapter 1, MCA; and

(c)(b) has an on-staff or retained professional engineer to certify compliance with department design standards for water, wastewater, and storm water facilities.; and

(c) when applicable, certifies the additional connections are subject to the provisions of Title 76, chapter 3, MCA, and the municipality is in compliance with a development plan approved by the department pursuant to ARM 17.38.101(20).

(3) A municipality that has been authorized to act as a certifying authority under this rule may be authorized to approve requests for a subdivision exemption under 76-4-125(1)(d), MCA, if the on-staff or retained professional engineer has completed an annual training program conducted by the department.

REASON:  The proposed deletion of (2)(b) reflects enactment of HB 55 in 2019, which removed the limitation that the municipal facilities exemption could only be used in first and second class municipalities and jurisdictional areas covered by a growth policy.

SB 237 from the 2023 legislative session directed the department to allow municipal systems to authorize connections beyond their current rated capacity with a department-approved development plan. Consistent with SB 237, proposed (2)(c) provides that capacity under a development plan can be used to authorize new connections for review under Title 76, chapter 4, MCA.  Details for the development plan conditions are set forth in ARM 17.38.101(19).

Proposed (3) implements HB 364 from the 2023 legislative session, which directed the department to allow municipalities, in lieu of the reviewing authority, to approve requests for a municipal facilities exclusion under 76-4-125(1)(d), MCA. To ensure the exemptions are approved when appropriate, proposed (3) requires the municipality to complete an annual training session regarding the appropriate use of the municipal facilities exclusion.  Annual re-training will ensure municipal employees stay up to date on any changes to the applicable statutes or rules. 

      17.36.802 FEE SCHEDULES (1) An applicant for approval under this subchapter shall pay the following fees:

(a) remains the same.

(b) type of water system:

(i) individual or shared water supply system (existing, previously approved, and proposed)

(A) per unit $110

(B) source-specific well isolation zone, each $250

(ii) and (iii) remain the same.

(c) type of wastewater disposal:

(i) existing or previously approved systems per unit $90

(ii) new gravity fed system per drainfield $120

(iii) new dosed system, elevated sand mound, ET systems, intermittent sand filter, ETA systems, recirculating sand filter, recirculating trickling filter, aerobic treatment unit, nutrient removal, and whole house subsurface drip irrigation systems:

(A) per design $ 240 $180 (plus $130/hour for review in excess of two hours)

(B) per drainfield $ 60 $120

[(iv) through (vi) missing]

(d) other:

(i) through (vi) remain the same.

(vii) storm drainage plan review:

(A) and (B) remain the same.

(C) storm water review exception $130

(viii) preparation of environmental assessments/environmental impact statements/MEPA exemptions: actual cost

(ix) remains the same.

            (3) Wastewater treatment systems must be located to maximize the vertical separation distance from the bottom of the absorption trench to the seasonally high ground water level, bedrock, or other limiting layer, but under no circumstances may this vertical separation be less than four feet of natural soil.  For elevated sand mounds constructed in accordance with Department Circular DEQ 4, the depth of the key may be included as part of the separation distance between the infiltrative surface and a limiting layer.

            (4) through (7) remain the same.

            (o) "Development plan" has the meaning in [Section 1(9)(a), SB 237]; and

 (p) "Rated capacity" has the meaning in [Section 1(9)(b), SB 237].

            (4)  A person may not commence or continue the construction, alteration, extension, or operation of a public water supply system or public sewage system until the applicant has submitted a design report along with the necessary plans and specifications for the system to the department or a delegated division of local government for its review and has received written approval. Three sets of plans and specifications are needed for final approval. Approval by the department or a delegated division of local government is contingent upon construction and operation of the public water supply or public sewage system consistent with the approved design report, plans, and specifications. Failure to construct or operate the system according to the approved plans and specifications or the department's conditions of approval is an alteration for purposes of this rule.  Design reports, plans, and specifications must meet the following criteria:

            (a) through (c) remain the same.

            (d) the board department adopts and incorporates by reference ARM 17.36.320 through 17.36.325.  The design report, plans, and specifications for public subsurface sewage treatment systems must be prepared in accordance with ARM 17.36.320 through 17.36.325, and with the format and criteria set forth in Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems."  For public subsurface sewage treatment systems with a design flow greater than or equal to 2500 gallons per day, the design report, plans, and specifications must be prepared by a professional engineer.

            (e) the board department adopts and incorporates by reference ARM 17.36.319 for purposes of review of public gray water irrigation systems. The design report, plans, and specifications for public gray water irrigation systems must be prepared in accordance with ARM 17.36.319, and in accordance with the format and criteria set forth in Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems."  For purposes of this chapter, "gray water" means wastewater that is collected separately from a sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets.

            (f) through (9) remain the same.

(10) Continuously active public water supply systems with a public water system ID number that have never submitted plans and specifications for department review are not required to submit plans and specifications unless specifically required by the department.

(a) All Community and non-transient, non-community public water supply systems that are inactive for three or more years must submit a design report, plans, and specifications, as required by (4) with the appropriate fees specified in this subchapter, for approval prior to reactivation.  Previously approved systems that have been inactive for three or more years may, at the department's discretion, use the abbreviated review process described in (9)(a).

(b) Transient non-community public water supply systems that have been inactive for three or more years are not required to submit a design report, plans, and specifications to re-activate if:

(i)  current water samples show the source is coliform-absent and nitrogen levels less than the maximum contaminant level;

(ii)  no water system facility modifications have been made to the system during inactivation;

(iii)  any significant deficiencies or sanitary defects previously identified have been corrected; 

(iv)  the water source is not under the influence of surface water; and

(v)  the PWSID number is submitted to the department.

(11) through (19) remain the same.

(20) Fees for review and approval of development plans will be at the hourly rate provided for in ARM 17.38.106(3).

REASON: The proposed amendments to (3)(o) and (p) and (21) and (22) implement SB 237 from the 2023 legislative session, which directed the department to allow municipalities to certify additional connections if they are operating under a department-approved development plan. Proposed (3)(o) and (3)(p) provide cross-reference to the statutory text for regulatory clarity and ease of use for the regulated community. SB 237 directed the department to set a fee that is commensurate with the costs of the department reviewing the development plans.  The department does not yet have an accurate estimate of the time these reviews will take, so proposed (20) imposes a fee based on an hourly rate rather than a flat fee.  Also, because this is a new procedure enacted by the 2023 Legislature, the department cannot estimate the number of persons who may be affected by this change. Proposed (23) provides the timeframe for development plan reviews will be the same as other public water and wastewater reviews, because they require the same level of effort.

The proposed changes to (4)(d) and (e) replace references to the Board of Environmental Review to the department. These housekeeping changes are necessary following SB 233 from the 2021 legislative session, which transferred rulemaking authority from the board to the department. The proposed text reflects the fact that, going forward, the department, not the board, will be responsible for adopting rules for public water and wastewater engineering requirements.

            In (10), the department proposes to no longer require plan review of transient non-community systems that have been inactive for three or more years in certain circumstances.  Sources of contamination for transient public water systems are limited to nitrogen and pathogens, both of which can be identified through water samples. Likewise, proposed (b)(i) through (iv) ensure that there is low risk of contamination if the system is reactivated. The requirement in (b)(iv) that any systems with a surface water source must be reviewed before reactivation is necessary because of the increased risk of contamination inherent to surface water sources. Proposed (b)(v) ensures that the department can correctly identify the system. The department does not propose to change the requirements for community and non-transient, non-community systems because the range of contaminants that could impact these systems is much larger and may not be adequately addressed by sampling, as well as required system redundancies. 

            17.38.102 DELEGATION OF REVIEW OF SMALL PUBLIC WATER AND SEWAGE SYSTEM PLANS AND SPECIFICATIONS (1) The department may shall delegate to divisions of local government the review of plans and specifications for:

(a) remains the same.

(b) extensions or alterations of existing public water and public sewage systems that involve 50 or fewer connections.

(2) remains the same.

(3) Local governments shall be reimbursed 90% of the review fee for performing these reviews and the department must receive the remaining 10% of the review fee.

(4) Local governments conducting reviews under this rule shall complete all documents necessary to complete the review and comply with:

(a) the Montana Environmental Policy Act provided in Title 75, chapter 1, parts 1 through 3, MCA;

(b) real property takings requirements in accordance with Title 70, MCA; and

(c) nondegradation and nonsignificance determinations required in accordance with Title 75, chapter 5, MCA.

            Circular DEQ-4 Standard 2.2.1. General. Site modifications, as described in Sections 2.2.2, 2.2.3, and 2.2.4 of this Subchapter, may be used only for replacement of failing systems. Site preparation for cut and fill modifications must be completed prior to final approval. Cut and fill systems must be designed to provide a minimum of 4 feet of natural soil separation to a limiting layer after the cut or fill has taken place.  Cut or fill cannot be used to overcome a horizontal or vertical separation.  Minor leveling, and cut and fill systems as described in Sections 2.2.3, 2.2.4, and 2.2.5 of this Subchapter, will be allowed for both new systems and replacement systems. All new and replacement subsurface wastewater treatment systems must meet the requirements of this Circular.

            Circular DEQ-4 Standard 2.2.3. Cut Systems. Cut systems may be used only for the replacement of failing systems and may not be used for new subsurface wastewater treatment systems. Site modification for replacement subsurface wastewater treatment systems under this section must be completed prior to approval by the reviewing authority.

            Circular DEQ-4 Standard 2.2.3.2. Design A. Cut areas for the replacement absorption system must be physically completed prior to approval. Two soil test holes must be excavated and detailed soil profile descriptions of the final receiving soils must be provided prior to excavation. Percolation tests may be required after the cut has been complete. All soil information must be submitted to the reviewing authority.  Three percolation tests evenly spaced across the completed cut must be performed at the depth of the proposed infiltrative surface as a basis for the design application rate.

            Circular DEQ-4 Standard 6.7.1. General. Elevated sand mounds may be used to achieve separation distance between the treatment system and a limiting layer. Four feet of natural soil must be maintained between the modified site ground surface and the limiting layer.

The rest of 6.7.1 remains the same.

REASON: In MAR Notice No. 17-421, the department modified ARM 17.36.320 to allow the sand mound key depth to count toward the separation distance. This change ensures there is no conflict between department rules, local health rules, and the design circular.

Circular DEQ-20, Standard  1.8 The Department may approve a source specific well isolation zone (SSWIZ) for existing individual wells that have well logs if the requirements of this standard are met.  Wells that were constructed in violation of 76-4-121 or 76-4-130 are not eligible for a source specific well isolation zone request.

a.    A request for a source specific well isolation zone of less than 100 feet must be in writing and must be accompanied by information substantiating the request and by the applicable fee.  To support the request, the applicant must submit the following:

1.    a driller's log of the well;

2.    total nitrogen and total coliform sample results from the well collected within the past 6 months;

3.    a lot layout or map showing the well location and potential sources of contamination within 200' of the well;

4.    the groundwater flow direction as determined by triangulation or published gradients;

5.    a virus attenuation analysis calculating the minimum horizontal distance needed to ensure the well is protected from sewage viruses; 

6.    any additional information the applicant believes would substantiate the request; and

7.    if the request requires a variance from the Board of Water Well Contractors, the approved variance must be submitted with the request.

b.    The applicant must demonstrate that the SSWIZ:

1.    would be unlikely to cause pollution of state water in violation of 75-5-605, MCA;

2.    would protect the quality and potability of water for drinking water supplies and domestic uses and would protect the quality of water for other beneficial uses, including those uses specified in 76-4-101, MCA; and

3.    would not adversely affect public health, safety, and welfare.

REASON: SB 327 from the 2023 legislative session allows for source-specific well isolation zones (SSWIZ) that are less than 100 feet, if the zone is approved by the department. The prohibition against a SSWIZ for an illegal well is necessary to discourage evasions of the Sanitation in Subdivisions Act. 

To justify the SSWIZ request, a driller's log is necessary to verify the subsurface conditions, depth, and grouting of the well, all of which are key components when determining whether to grant a SSWIZ. A recent total nitrogen and total coliform sample is necessary to determine whether the well meets water quality standards. A lot layout or map and triangulated or published gradient data is necessary to identify whether there are any surrounding sources of pollution that could negatively impact the well. A virus attenuation analysis is necessary to determine how far sewage viruses could travel at the site-specific location, which will impact the decision whether to grant a SSWIZ. The requirement that any required variance from the Board of Water Well Contractors be granted before applying to the department is necessary to ensure that the department does not approve source-specific isolation zones that conflict with another regulatory authority. 

The criteria provided in (b) is necessary to ensure that the source specific well isolation zone would not threaten the environment or public health. The proposed criteria are the same as those currently used for evaluating deviation requests and are therefore familiar to applicants in their submittals and the department in its review. 

6. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to the Department of Environmental Quality, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; telephone (406) 444-1388; fax (406) 444-4386; or e-mail DEQSubDivRuleUpdate@mt.gov, and must be received no later than 5:00 p.m., September 25, 2023.

/s/ Angela Colamaria                                 /s/  Christopher Dorrington            

ANGELA COLAMARIA                              CHRISTOPHER DORRINGTON

Rule Reviewer                                            Director

                                                                    Department of Environmental Quality