BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.36.103 pertaining to application contents

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT   (WATER QUALITY)

 

TO: All Concerned Persons

 

1. On July 16, 2024, at 1:00 p.m., the Department of Environmental Quality (department) will hold an in-person public hearing in Room 111 of the Metcalf Building, at 1520 E. Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules. Interested parties may also attend the hearing electronically in the following ways:

 

Please click the link below to join the webinar:

https://mt-gov.zoom.us/j/83481610549?pwd=ulBGOFsUW5muCHuLyeXLXrZ24E9Icw.8Am12oRam1bBv5D-

Passcode: 934926

Or One tap mobile :

    +12133388477,,83481610549#,,,,*934926# US (Los Angeles)

    +12063379723,,83481610549#,,,,*934926# US (Seattle)

Or Telephone:

    Dial(for higher quality, dial a number based on your current location):

    +1 213 338 8477 US (Los Angeles)

    +1 206 337 9723 US (Seattle)

    +1 646 558 8656 US (New York)

Webinar ID: 834 8161 0549

Passcode: 934926

    International numbers available: https://mt-gov.zoom.us/u/kRKaNR1tz

 

Or an H.323/SIP room system:

    H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East)

    Meeting ID: 834 8161 0549

    Passcode: 934926

    SIP: [email protected]

    Passcode: 934926

 

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 July 8, 2024, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail [email protected].

 

3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:

 

17.36.103 APPLICATION – CONTENTS (1) In addition to the completed application form required by ARM 17.36.102, the following information must be submitted to the reviewing authority as part of an application:

(a) through (m) remain the same.

(p) through (s) remain the same, but are renumbered (n) through (q).

 

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

 

REASON: The Department of Environmental Quality (department) is proposing to amend ARM 17.36.103(1) to repeal existing (n) and (o) to be consistent with statutory authority under recent judicial interpretation between the department and the Department of Natural Resources and Conservation (DNRC).  Thus, the department will no longer require a letter (predetermination letter) from DNRC to allow the Sanitation in Subdivisions Act (Sanitation Act) approval to proceed as previously required under this rule.

The department (or a delegated health department) reviews facilities in proposed subdivisions under the Sanitation Act.  76-4-101 et seq., MCA.  The Sanitation Act's purpose is "to protect the quality and potability of water for public water supplies and domestic uses and to protect the quality of water." 76-4-101, MCA.  The Sanitation Act satisfies its purpose through the department's evaluation of the physical presence and properties of water (i.e., quantity and quality).  76-4-104(7), MCA.  The department does not have statutory authority to review the validity of legal water availability (i.e., water rights), which is DNRC's authority under the Water Use Act.  85-2-101 et seq, MCA.  Likewise, DNRC does not have authority to evaluate subdivisions under the Sanitation Act or prior to an application under Title 85, chapter 2, MCA.

In MAR Notice No. 17-358 published in Issue Number 8 of the Montana Administrative Register (MAR) on April 24, 2014, the department amended ARM 17.36.103 to add (1)(n)–then numbered (1)(s).  The department reasoned that it would require applicants to provide information to the department about the status of water rights for any proposed water supply using wells or springs, except for connections with existing public water supply systems, which requires certification of appropriate water rights under ARM 17.36.123–then ARM 17.36.328.  Applicants could either submit proof of a water right or a letter from the DNRC stating that the subdivision is exempt from DNRC permitting requirements.  The reason statement continued that without the water rights information, the department would not issue a Sanitation in Subdivisions Act approval.

In 2014, following adoption of ARM 17.36.103(1)(n)–then numbered (1)(s)–the department entered a memorandum of understanding with DNRC.  The memorandum of understanding memorialized the joint agency procedure for expeditious and coordinated review of applications for subdivisions that obtain water from wells or springs.  The relevant application review procedure required DNRC's predetermination of the necessity of a water right permit or certificate for the proposed water supply.

In MAR Notice No. 17-421 published in Issue 24 of the MAR on December 23, 2022, the department proposed to amend ARM 17.36.103(1)(n) and add (1)(o).  The department reasoned that in current (1)(n), the water rights letter would be required for relocations of existing multiple-user wells, which are most likely to impact water rights.  Subsection (1)(n) would now also require a statement regarding a controlled groundwater area because of lack of dependable water or pollution which could impact setbacks or the quality and dependability of water supplies.  Subsection (1)(o) updated water rights language to address current and future changes to water right jurisdiction based on tribal water compacts. 

However, on February 14, 2024, the Montana First Judicial District Court issued an order in Upper Missouri Waterkeeper et al. v. Broadwater County and DNRC.  Cause No. BDV-2022-38.  Although the department was not party to the litigation, the District Court noted that the Montana Legislature has not authorized the department to promulgate rules under 76-4-104, MCA, as to the legal appropriability of water–ARM 17.36.103(1)(n) and (o), but only the factual existence and properties of water.  p. 50.

Under the Sanitation Act, and upon judicial direction, the department has limited statutory authority to assess physical water availability–not legal availability through the assessment of water rights–which is DNRC's limited statutory authority under the Water Use Act.  However, DNRC does not have statutory authority to approve subdivisions.  This means that the department's and DNRC's roles are distinct without legislation that designates the department's and DNRC's roles in this area of currently overlapping dependency.

While the department values the utility of the DNRC's predetermination letters in subdivision approvals under the Sanitation Act, it understands that the District Court noted that the department lacks statutory authority to require such information prior to subdivision approval.  Additionally, experience administering the rule has caused the department to reevaluate whether the rule is necessary and appropriate.  Following extensive consideration of the law, the judicial determination, and the rule in practice, the department finds it necessary to amend the rule to repeal (1)(n) and (o) until it has definitive statutory authority to require such information from the applicant–and ultimately DNRC–for this process.

Therefore, through this amendment, the department no longer requires predetermination from the DNRC to allow Sanitation Act approval to proceed to be consistent with the District Court's order, DNRC's current legal authority, and the department's current legal authority. 

 

4. 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 [email protected], and must be received no later than 5:00 p.m., July 19, 2024.

 

5.  Marisa Heiling, staff attorney for the department, has been designated to preside over and conduct this hearing.

 

6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Written requests may be mailed or delivered to the contact person in paragraph 4 or may be made by completing a request form at any rules hearing held by the department.

 

7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register. 

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.

 

/s/ Jonathan Morgan                                   /s/ Christopher Dorrington            

JONATHAN MORGAN                               CHRISTOPHER DORRINGTON

Rule Reviewer                                            Director

                                                                    Department of Environmental Quality

           

Certified to the Secretary of State June 11, 2024.