SENATE BILL NO. 413

INTRODUCED BY D. GRIMES

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING VARIOUS ASPECTS OF THE MONTANA ENVIRONMENTAL POLICY ACT; PROVIDING DEFINITIONS; CLARIFYING THE REQUIREMENT THAT STATE AGENCIES IDENTIFY AND DEVELOP METHODS AND PROCEDURES THAT ENSURE THAT PRESENTLY QUANTIFIED ENVIRONMENTAL AMENITIES AND VALUES MAY BE GIVEN APPROPRIATE CONSIDERATION IN DECISIONMAKING; REQUIRING THE DIRECTOR OF A STATE AGENCY COMMENTING ON A PROPOSED ACTION TO DETERMINE THE SIGNIFICANCE OF THE PROPOSED ACTION; CLARIFYING THE TREATMENT OF A TRANSFER OF OWNERSHIP; LIMITING A COURT'S SCOPE OF REVIEW FOR AN ACTION OR CHALLENGE THAT AN ENVIRONMENTAL STATEMENT OR REVIEW IS NOT REQUIRED OR THAT THE STATEMENT OR REVIEW IS INADEQUATE; REQUIRING AN ENVIRONMENTAL IMPACT STATEMENT CONTRACTOR TO POST A PERFORMANCE BOND; AMENDING SECTION 75-1-201, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND APPLICABILITY DATES."

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

NEW SECTION. Section 1. Definitions. As used in 75-1-201 and this section, unless the context requires otherwise, the following definitions apply:

(1) "Cumulative impact" means the collective impact of the proposed action on the human environment when considered in conjunction with other past and present actions related to the proposed action by location or generic type. Related future actions may be considered only when those actions are under concurrent consideration by any state agency in a separate environmental assessment or in a detailed statement.

(2) "Detailed statement" means an environmental impact statement on agency programs and other major actions that could significantly affect the quality of the human environment, including the economic and cultural viability of local communities.

(3) "Proposal for project" means a proposed action that has localized impact, that is site-specific, or that does not significantly affect the quality of the human environment. A proposal for project does not require the preparation of a detailed statement.

(4) "Significantly affect" means that the degree of impact on the quality of the human environment, including the economic and cultural viability of local communities, will be of serious material consequence in its severity, duration, or geographic extent.

Section 2. Section 75-1-201, MCA, is amended to read:

"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes and directs that, to the fullest extent possible:

(a) the policies, regulations, and laws of the state must be interpreted and administered in accordance with the policies set forth in parts 1 through 3;

(b) all agencies of the state, except the legislature and except as provided in subsection (2), shall:

(i) use a systematic, interdisciplinary approach that will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking that may have an impact on the human environment;

(ii) identify and develop methods and procedures that will ensure that presently quantified environmental amenities and values may be given appropriate consideration in decisionmaking, along with economic and technical considerations;

(iii) identify and develop methods and procedures that will ensure that state government actions that may impact the human environment are evaluated for regulatory restrictions on private property, as provided in subsection (1)(b)(iv)(D);

(iv) include in each recommendation or report on proposals for projects, programs, and other major actions of state government that significantly affect the quality of the human environment a detailed statement on:

(A) the environmental impact of the proposed action, including cumulative impact;

(B) any adverse environmental effects that cannot be avoided if the proposal is implemented;

(C) alternatives to the proposed action;

(D) any regulatory impacts on private property rights, including whether alternatives that reduce, minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private property.

(E) the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and

(F) any irreversible and irretrievable commitments of resources that would be involved in the proposed action if it is implemented;

(v) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources;

(vi) recognize the national and long-range character of environmental problems and, when consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs designed to maximize national cooperation in anticipating and preventing a decline in the quality of the world environment;

(vii) make available to counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(viii) initiate and use ecological information in the planning and development of resource-oriented projects; and

(ix) assist the environmental quality council established by 5-16-101;

(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or special expertise with respect to any environmental impact involved. The director of a state agency commenting under this section shall make any determination of significance. The responsible state official shall also consult with and obtain comments from any state agency with respect to any regulation of private property involved. Copies of the statement and the comments and views of the appropriate state, federal, and local agencies that are authorized to develop and enforce environmental standards must be made available to the governor, the environmental quality council, and the public and must accompany the proposal through the existing agency review processes.

(d) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for use or permission to act by an agency, either singly or in combination with other state agencies, does not trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the entitlement or unless otherwise provided by law.

(2) If a programmatic detailed statement pursuant to (1)(b)(iv) has been prepared for the area in which a site-specific project is proposed, a project-specific environmental assessment tiered to the programmatic detailed statement is a sufficiently detailed statement to meet the requirements of parts 1 through 3 of this chapter.

(3) The department of public service regulation, in the exercise of its regulatory authority over rates and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.

(4) (a) In any action challenging or seeking review of an agency's decision that a statement pursuant to subsection (1)(b)(iv) is not required or that the statement is inadequate, the burden of proof is on the person challenging the decision.

(b) (i) In a challenge to the adequacy of a statement, a court may not consider any issue or evidence that was not first presented to the agency for the agency's consideration prior to the agency's decision.

(ii) If new, material, and significant evidence that had not been previously presented to the agency for its consideration is presented to a district court, the district court shall remand the new evidence to the agency for its consideration and an opportunity to modify its factual findings and administrative decision before the district court considers the evidence within the administrative record under review.

(iii) Immaterial or insignificant evidence may not be remanded to the agency or considered by the district court.

(iv) A district court may not hold an evidentiary hearing or make any original findings of fact. The district court is limited to reviewing an agency's findings and decision to determine whether the findings and decision are supported by substantial and credible evidence within the administrative record under review.

(c) A court may not set aside the agency's decision unless it finds that there is clear and convincing evidence that the decision was arbitrary or capricious or not in compliance with law."

NEW SECTION. Section 3. Performance bonding for environmental impact statement contractors. Before conducting work on an environmental impact statement pursuant to 75-1-201, a contractor shall provide a performance bond that is satisfactory to the state agency and that is in an amount determined by the state agency and executed by a surety company authorized to do business in this state or is otherwise secured in a manner satisfactory to the state agency. The performance bond must be delivered to the state agency. The requirements for the bond must be at least as stringent as those stated in 18-4-312(3).

NEW SECTION. Section 4. Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 75, chapter 1, part 1, and the provisions of Title 75, chapter 1, part 1, apply to [section 1].

(2) [Section 3] is intended to be codified as an integral part of Title 75, chapter 1, part 2, and the provisions of Title 75, chapter 1, part 2, apply to [section 3].

NEW SECTION. Section 5. Effective date. [This act] is effective on passage and approval.

NEW SECTION. Section 6. Retroactive applicability. [Section 2 (4)] applies retroactively, within the meaning of 1-2-109, to all matters pending before an agency on [the effective date of this act].

NEW SECTION. Section 7. Applicability. Except as provided in [section 6], [this act] applies to agency actions initiated pursuant to Title 75, chapter 1, part 2, after [the effective date of this act].

- END -