2007 Montana Legislature

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HOUSE BILL NO. 383

INTRODUCED BY KERNS, BALES

 

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE WATER QUALITY LAWS; PROVIDING THAT WATER THAT IS PRODUCED IN ASSOCIATION WITH A COAL BED METHANE WELL MAY BE DISCHARGED INTO IMPOUNDMENTS ON EPHEMERAL STREAMS IF CERTAIN CRITERIA ARE MET; DEFINING AND MODIFYING TERMS; PROVIDING PERMIT REQUIREMENTS; AMENDING SECTIONS 75-5-103, 75-5-303, 75-5-317, AND 75-5-401, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     NEW SECTION.  Section 1.  Discharge of water resulting from coal bed methane production. Water quality standards may be exceeded OTHER WATER QUALITY STANDARDS DO NOT APPLY and water that is produced in association with coal bed methane wells and is unaltered from its source may be discharged into an impoundment on an ephemeral stream if:

     (1) the impoundment existed on [the effective date of this act];

     (2) a new impoundment is constructed for the purpose of providing a series of impoundments to manage water on the same ephemeral stream as an impoundment that existed on [the effective date of this act];

     (3) the produced water that is discharged into the impoundment has a use for wildlife or livestock and is of good enough MEETS A NARRATIVE STANDARD OF SUFFICIENT quality at the time of discharge and during periods of use to be used for wildlife or livestock watering and the produced water is put to those uses at some time during a calendar year; and

     (4) the impoundment is engineered and built with a designed outlet structure and adequate free board, meaning the distance from the top of the normal water level to the top of the impoundment, to contain the 25-year, 24-hour storm event unless water is intentionally discharged when there are multiple impoundments used as a water management system.

 

     Section 2.  Section 75-5-103, MCA, is amended to read:

     "75-5-103.  Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

     (1)  "Board" means the board of environmental review provided for in 2-15-3502.

     (2)  "Contamination" means impairment of the quality of state waters by sewage, industrial wastes, or other wastes, creating a hazard to human health.

     (3)  "Council" means the water pollution control advisory council provided for in 2-15-2107.

     (4)  (a) "Currently available data" means data that is readily available to the department at the time a decision is made, including information supporting its previous lists of water bodies that are threatened or impaired.

     (b)  The term does not mean new data to be obtained as a result of department efforts.

     (5) (a) "Degradation" means a change in water quality that lowers the quality of high-quality waters for a parameter.

     (b) The term does not include those changes in water quality determined to be nonsignificant pursuant to 75-5-301(5)(c).

     (6)  "Department" means the department of environmental quality provided for in 2-15-3501.

     (7)  "Disposal system" means a system for disposing of sewage, industrial, or other wastes and includes sewage systems and treatment works.

     (8)  "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of chemical, physical, biological, and other constituents that are discharged into state waters.

     (9) "Ephemeral stream" means a stream or part of a stream that flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice and in which the channel bottom is always above the local water table.

     (9)(10) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971, whether or not those uses are included in the water quality standards.

     (10)(11) "High-quality waters" means all state waters, except:

     (a)  ground water classified as of January 1, 1995, within the "III" or "IV" classifications established by the board's classification rules; and

     (b)  surface waters that:

     (i)  are not capable of supporting any one of the designated uses for their classification; or

     (ii) have zero flow or surface expression for more than 270 days during most years; or

     (iii) are within an impoundment on an ephemeral stream and are discharged into the impoundment pursuant to [section 1].

     (11)(12) "Impaired water body" means a water body or stream segment for which sufficient credible data shows that the water body or stream segment is failing to achieve compliance with applicable water quality standards.

     (12)(13) "Industrial waste" means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present.

     (13)(14) "Interested person" means a person who has a real property interest, a water right, or an economic interest that is or may be directly and adversely affected by the department's preliminary decision regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested authorization to degrade high-quality waters.

     (14)(15) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future nonpoint sources or to natural background sources.

     (15)(16) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the maximum change that can occur from the best practicable condition in a surface water without causing a violation of the surface water quality standards.

     (16)(17) "Local department of health" means the staff, including health officers, employed by a county, city, city-county, or district board of health.

     (17)(18) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium, barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver, thallium, and zinc.

     (18)(19) "Mixing zone" means an area established in a permit or final decision on nondegradation issued by the department where water quality standards may be exceeded, subject to conditions that are imposed by the department and that are consistent with the rules adopted by the board.

     (19)(20) "Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.

     (20)(21) "Outstanding resource waters" means:

     (a)  state surface waters located wholly within the boundaries of areas designated as national parks or national wilderness areas as of October 1, 1995; or

     (b)  other surface waters or ground waters classified by the board under the provisions of 75-5-316 and approved by the legislature.

     (21)(22) "Owner or operator" means a person who owns, leases, operates, controls, or supervises a point source.

     (22)(23) "Parameter" means a physical, biological, or chemical property of state water when a value of that property affects the quality of the state water.

     (23)(24) "Person" means the state, a political subdivision of the state, or an institution, firm, corporation, partnership, individual, or other entity and includes persons resident in Canada.

     (24)(25) "Point source" means a discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or other floating craft, from which pollutants are or may be discharged.

     (25)(26) (a) "Pollution" means:

     (i)  contamination or other alteration of the physical, chemical, or biological properties of state waters that exceeds that permitted by Montana water quality standards, including but not limited to standards relating to change in temperature, taste, color, turbidity, or odor; or

     (ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or other substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other wildlife.

     (b)  A discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution discharge permit rules of the board is not pollution under this chapter. Activities conducted under the conditions imposed by the department in short-term authorizations pursuant to 75-5-308 are not considered pollution under this chapter. A discharge conducted pursuant to [section 1] is not considered pollution under this chapter.

     (26)(27) "Sewage" means water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present.

     (27)(28) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

     (28)(29) "Standard of performance" means a standard adopted by the board for the control of the discharge of pollutants that reflects the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, when practicable, a standard permitting no discharge of pollutants.

     (29)(30) (a) "State waters" means a body of water, irrigation system, or drainage system, either surface or underground.

     (b)  The term does not apply to:

     (i)  ponds or lagoons used solely for treating, transporting, or impounding pollutants; or

     (ii) irrigation waters or land application disposal waters when the waters are used up within the irrigation or land application disposal system and the waters are not returned to state waters.

     (30)(31) "Sufficient credible data" means chemical, physical, or biological monitoring data, alone or in combination with narrative information, that supports a finding as to whether a water body is achieving compliance with applicable water quality standards.

     (31)(32) "Threatened water body" means a water body or stream segment for which sufficient credible data and calculated increases in loads show that the water body or stream segment is fully supporting its designated uses but threatened for a particular designated use because of:

     (a)  proposed sources that are not subject to pollution prevention or control actions required by a discharge permit, the nondegradation provisions, or reasonable land, soil, and water conservation practices; or

     (b)  documented adverse pollution trends.

     (32)(33) "Total maximum daily load" or "TMDL" means the sum of the individual waste load allocations for point sources and load allocations for both nonpoint sources and natural background sources established at a level necessary to achieve compliance with applicable surface water quality standards.

     (33)(34) "Treatment works" means works, including sewage lagoons, installed for treating or holding sewage, industrial wastes, or other wastes.

     (34)(35) "Waste load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources.

     (35)(36) "Water quality protection practices" means those activities, prohibitions, maintenance procedures, or other management practices applied to point and nonpoint sources designed to protect, maintain, and improve the quality of state waters. Water quality protection practices include but are not limited to treatment requirements, standards of performance, effluent standards, and operating procedures and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from material storage.

     (36)(37) "Water well" means an excavation that is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed and intended for the location, diversion, artificial recharge, or acquisition of ground water.

     (37)(38) "Watershed advisory group" means a group of individuals who wish to participate in an advisory capacity in revising and reprioritizing the list of water bodies developed under 75-5-702 and in the development of TMDLs under 75-5-703, including those groups or individuals requested by the department to participate in an advisory capacity as provided in 75-5-704."

 

     Section 3.  Section 75-5-303, MCA, is amended to read:

     "75-5-303.  Nondegradation policy. (1) Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.

     (2)  Unless authorized by the department under subsection (3), addressed in [section 1], or exempted from review under 75-5-317, the quality of high-quality waters must be maintained.

     (3)  The department may not authorize degradation of high-quality waters unless it has been affirmatively demonstrated by a preponderance of evidence to the department that:

     (a)  degradation is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation;

     (b)  the proposed project will result in important economic or social development and that the benefit of the development exceeds the costs to society of allowing degradation of high-quality waters;

     (c)  existing and anticipated use of state waters will be fully protected; and

     (d)  the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be fully implemented by the applicant prior to and during the proposed activity.

     (4)  The department shall issue a preliminary decision either denying or authorizing degradation and shall provide public notice and a 30-day comment period prior to issuing a final decision. The department's preliminary and final decisions must include:

     (a)  a statement of the basis for the decision; and

     (b)  a detailed description of all conditions applied to any authorization to degrade state waters, including, when applicable, monitoring requirements, required water protection practices, reporting requirements, effluent limits, designation of the mixing zones, the limits of degradation authorized, and methods of determining compliance with the authorization for degradation.

     (5)  An interested person wishing to challenge a final department decision may request a hearing before the board within 30 days of the final department decision. The contested case procedures of Title 2, chapter 4, part 6, apply to a hearing under this section.

     (6)  Periodically, but not more often than every 5 years, the department may review authorizations to degrade state waters. Following the review, the department may, after timely notice and opportunity for hearing, modify the authorization if the department determines that an economically, environmentally, and technologically feasible modification to the development exists. The decision by the department to modify an authorization may be appealed to the board.

     (7)  The board may not issue an authorization to degrade state waters that are classified as outstanding resource waters.

     (8)  The board shall adopt rules to implement this section."

 

     Section 4.  Section 75-5-317, MCA, is amended to read:

     "75-5-317.  Nonsignificant activities. (1) The categories or classes of activities identified in subsection (2) cause changes in water quality that are nonsignificant because of their low potential for harm to human health or the environment and their conformance with the guidance found in 75-5-301(5)(c).

     (2)  The following categories or classes of activities are not subject to the provisions of 75-5-303:

     (a)  existing activities that are nonpoint sources of pollution as of April 29, 1993;

     (b)  activities that are nonpoint sources of pollution initiated after April 29, 1993, when reasonable land, soil, and water conservation practices are applied and existing and anticipated beneficial uses will be fully protected;

     (c)  use of agricultural chemicals in accordance with a specific agricultural chemical ground water management plan promulgated under 80-15-212, if applicable, or in accordance with an environmental protection agency-approved label and when existing and anticipated uses will be fully protected;

     (d)  changes in existing water quality resulting from an emergency or remedial activity that is designed to protect public health or the environment and is approved, authorized, or required by the department;

     (e)  changes in existing ground water quality resulting from treatment of a public water supply system, as defined in 75-6-102, or a public sewage system, as defined in 75-6-102, by chlorination or other similar means that is designed to protect the public health or the environment and that is approved, authorized, or required by the department;

     (f)  the use of drilling fluids, sealants, additives, disinfectants, and rehabilitation chemicals in water well or monitoring well drilling, development, or abandonment, if used according to department-approved water quality protection practices and if no discharge to surface water will occur;

     (g)  short-term changes in existing water quality resulting from activities authorized by the department pursuant to 75-5-308;

     (h)  land application of animal waste, domestic septage, or waste from public sewage treatment systems containing nutrients when the wastes are applied to the land in a beneficial manner, application rates are based on agronomic uptake of applied nutrients, and other parameters will not cause degradation;

     (i)  incidental leakage of water from a public water supply system, as defined in 75-6-102, or from a public sewage system, as defined in 75-6-102, utilizing using best practicable control technology designed and constructed in accordance with Title 75, chapter 6;

     (j)  discharges of water to ground water from water well or monitoring well tests, hydrostatic pressure and leakage tests, or wastewater from the disinfection or flushing of water mains and storage reservoirs, conducted in accordance with department-approved water quality protection practices;

     (k)  oil and gas drilling, production, abandonment, plugging, and restoration activities that do not result in discharges to surface water and that are performed in accordance with Title 82, chapter 10, or Title 82, chapter 11;

     (l)  short-term changes in existing water quality resulting from ordinary and everyday activities of humans or domesticated animals, including but not limited to:

     (i)  such recreational activities as boating, hiking, hunting, fishing, wading, swimming, and camping;

     (ii) fording of streams or other bodies of water by vehicular or other means; and

     (iii) drinking from or fording of streams or other bodies of water by livestock and other domesticated animals;

     (m)  coal and uranium prospecting that does not result in a discharge to surface water, that does not involve a test pit located in surface water or that may affect surface water, and that is performed in accordance with Title 82, chapter 4;

     (n)  solid waste management systems, motor vehicle wrecking facilities, and county motor vehicle graveyards licensed and operating in accordance with Title 75, chapter 10, part 2, or Title 75, chapter 10, part 5;

     (o)  hazardous waste management facilities permitted and operated in accordance with Title 75, chapter 10, part 4;

     (p)  metallic and nonmetallic mineral exploration that does not result in a discharge to surface water and that is permitted under and performed in accordance with Title 82, chapter 4, parts 3 and 4;

     (q)  stream-related construction projects or stream enhancement projects that result in temporary changes to water quality but do not result in long-term detrimental effects and that have been authorized pursuant to 75-5-318;

     (r)  diversions or withdrawals of water established and recognized under Title 85, chapter 2;

     (s)  the maintenance, repair, or replacement of dams, diversions, weirs, or other constructed works that are related to existing water rights and that are within wilderness areas so long as existing and anticipated beneficial uses are protected and as long as the changes in existing water quality relative to the project are short term; and

     (t) the discharge of water into an impoundment on an ephemeral stream if the discharge meets the criteria provided in [section 1]; and

     (t)(u)  any other activity that is nonsignificant because of its low potential for harm to human health or to the environment and its conformance with the guidance found in 75-5-301(5)(c)."

 

     Section 5.  Section 75-5-401, MCA, is amended to read:

     "75-5-401.  Board rules for permits -- ground water exclusions. (1) Except as provided in subsection (5), the board shall adopt rules:

     (a)  governing application for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems;

     (b)  governing the issuance, denial, modification, or revocation of permits. The board may not require a permit for a water conveyance structure or for a natural spring if the water discharged to state waters does not contain industrial waste, sewage, or other wastes. Discharge to surface water of ground water that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if:

     (i)  the discharge does not contain industrial waste, sewage, or other wastes;

     (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any parameters; and

     (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parameters.

     (c)  governing authorization to discharge under a general permit for storm water associated with construction activity. These rules must allow an owner or operator to notify the department of the intent to be covered under the general permit. This notice of intent must include a signed pollution prevention plan that requires the applicant to implement best management practices in accordance with the general permit. The rules must authorize the owner or operator to discharge under the general permit on receipt of the notice and plan by the department.

     (2) (a)  The Subject to subsection (2)(b), the rules must allow the issuance or continuance of a permit only if the department finds that operation consistent with the limitations of the permit will not result in pollution of any state waters, except that the rules may allow the issuance of a temporary permit under which pollution may result if the department ensures that the permit contains a compliance schedule designed to meet all applicable effluent standards and water quality standards in the shortest reasonable period of time.

     (b) The rules must require the issuance or continuance of a permit if the water is discharged to an impoundment on an ephemeral stream and the criteria of [section 1] are met.

     (3)  The rules must provide that the department may revoke a permit if the department finds that the holder of the permit has violated its terms, unless the department also finds that the violation was accidental and unforeseeable and that the holder of the permit corrected the condition resulting in the violation as soon as was reasonably possible.

     (4)  The board may adopt rules governing reclamation of sites disturbed by construction, modification, or operation of permitted activities for which a bond is voluntarily filed by a permittee pursuant to 75-5-405, including rules for the establishment of criteria and procedures governing release of the bond or other surety and release of portions of a bond or other surety.

     (5)  Discharges of sewage, industrial wastes, or other wastes into state ground waters from the following activities or operations are not subject to the ground water permit requirements adopted under subsections (1) through (4):

     (a)  discharges or activities at wells injecting fluids associated with oil and gas exploration and production regulated under the federal underground injection control program;

     (b)  disposal by solid waste management systems licensed pursuant to 75-10-221;

     (c)  individuals disposing of their own normal household wastes on their own property;

     (d)  hazardous waste management facilities permitted pursuant to 75-10-406;

     (e)  water injection wells, reserve pits, and produced water pits used in oil and gas field operations and approved pursuant to Title 82, chapter 11;

     (f)  agricultural irrigation facilities;

     (g)  storm water disposal or storm water detention facilities;

     (h)  subsurface disposal systems for sanitary wastes serving individual residences;

     (i)  in situ mining of uranium facilities controlled under Title 82, chapter 4, part 2;

     (j)  mining operations subject to operating permits or exploration licenses in compliance with The Strip and Underground Mine Reclamation Act, Title 82, chapter 4, part 2, or the metal mine reclamation laws, Title 82, chapter 4, part 3; or

     (k)  projects reviewed under the provisions of the Montana Major Facility Siting Act, Title 75, chapter 20.

     (6)  Notwithstanding the provisions of 75-5-301(4), mixing zones for activities excluded from permit requirements under subsection (5) of this section must be established by the permitting agency for those activities in accordance with 75-5-301(4)(a) through (4)(c).

     (7)  Notwithstanding the exclusions set forth in subsection (5), any excluded source that the department determines may be causing or is likely to cause violations of ground water quality standards may be required to submit monitoring information pursuant to 75-5-602.

     (8)  The board may adopt rules identifying other activities or operations from which a discharge of sewage, industrial wastes, or other wastes into state ground waters is not subject to the ground water permit requirements adopted under subsections (1) through (4).

     (9)  The board may adopt rules authorizing general permits for categories of point source discharges. The rules may authorize discharge upon issuance of an individual authorization by the department or upon receipt of a notice of intent to be covered under the general permit."

 

     NEW SECTION.  Section 6.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 75, chapter 5, and the provisions of Title 75, chapter 5, apply to [section 1].

 

     NEW SECTION.  Section 7.  Effective date. [This act] is effective on passage and approval.

- END -

 


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