House Bill No. 546
Introduced By tash, grosfield, knox, grinde, harp, mercer
A Bill for an Act entitled: An Act amending the water quality laws to further direct the department of environmental quality to monitor state waters to assess their quality and to develop total maximum daily loads for those waters identified as threatened or impaired; amending section
75-5-103, MCA; and providing an immediate effective date.
Be it enacted by the Legislature of the State of Montana:
Section 1. 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.
(4)(5) "Degradation" means a change in water quality that lowers the quality of high-quality waters for a parameter. The
term does not include those changes in water quality determined to be nonsignificant pursuant to 75-5-301(5)(c). (5)(6) "Department" means the department of environmental quality provided for in 2-15-3501. (6)(7) "Disposal system" means a system for disposing of sewage, industrial, or other wastes and includes sewage systems
and treatment works. (7)(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. (8)(9) "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. (9)(10) "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.
(11) "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.
(10)(12) "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. (11)(13) "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) "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) "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.
(12)(16) "Local department of health" means the staff, including health officers, employed by a county, city, city-county, or
district board of health. (13)(17) "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. (14)(18) "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. (15)(19) "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. (16)(20) "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.
(17)(21) "Owner or operator" means a person who owns, leases, operates, controls, or supervises a point source. (18)(22) "Parameter" means a physical, biological, or chemical property of state water when a value of that property affects
the quality of the state water. (19)(23) "Person" means the state, a political subdivision of the state, institution, firm, corporation, partnership, individual,
or other entity and includes persons resident in Canada. (20)(24) "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. (21)(25) (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.
(22)(26) "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. (23)(27) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an
ultimate disposal point. (24)(28) "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. (25)(29) (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) "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) "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) "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.
(26)(33) "Treatment works" means works, including sewage lagoons, installed for treating or holding sewage, industrial
wastes, or other wastes.
(34) "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.
(27)(35) "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. (28)(36) "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) "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 [section 3] and in the development of TMDLs under [section 4], including those groups or individuals requested by the department to participate in an advisory capacity as provided in [section 5]."
Section 2. Purpose. Consistent with the policy established in 75-5-101(2) to provide a comprehensive program for the prevention, abatement, and control of water pollution, the purpose of [sections 2 through 6] is to further direct the department to monitor state waters to accurately assess their quality and, when required, to develop total maximum daily loads for those water bodies identified as threatened or impaired.
Section 3. Monitoring -- water quality assessment listing. (1) The department shall monitor state waters to assess the quality of those waters and to identify surface water bodies or segments of surface water bodies that are threatened or impaired. The department shall use the monitoring results to revise the list of water bodies that are identified as threatened or impaired and to establish a priority ranking for TMDL development for those waters in accordance with subsections (4) and (7).
(2) In revising the list prepared pursuant to this section, the department shall use all currently available data, including information or data obtained from federal, state, and local agencies, private entities, or individuals with an interest in water quality protection. Except as provided in subsection (6), the department may modify the list only if there is sufficient credible data to support the modification. Prior to publishing a final list, the department shall provide public notice and allow 60 days for public comment on the draft list. The department shall make available for public review, upon request, documentation used in the determination to list or delist a particular water body, including, at a minimum, a description of the information, data, and methodology used. The department may charge a reasonable fee for the documentation, commensurate with the cost of providing the documentation to the requestor.
(3) A person may request that the department add or remove a water body or reprioritize a water body on a draft or published list by providing the data or information necessary to support the request. The department shall review the data within 60 days from its submittal. If the department determines that there is sufficient credible data to grant the request, the department shall provide public notice of its intended action and allow 60 days for public comment prior to taking action on the request. A person aggrieved by the department's decision to grant or deny the request may appeal the department's decision to the board.
(4) The department shall, in consultation with local conservation districts and watershed advisory groups pursuant to [section 5], review and revise the list and priority rankings of water bodies identified as threatened or impaired. The department shall review and revise the list at intervals not to exceed 5 years. The department shall make available for public review the data and information used in making any changes in its list of threatened or impaired water bodies that is developed and maintained pursuant to this section.
(5) By October 1, 1999, the department shall develop and maintain a data management system that can be used to assess the validity and reliability of the data used in the listing and priority ranking process. The department shall make available to the public, upon request, data from its data management system. The department may charge a reasonable fee for the data, commensurate with its cost of providing the data to the requestor.
(6) By October 1, 1999, the department shall use the data management system developed and maintained pursuant to subsection (5) to revise the list and to remove any water body that lacks sufficient credible data to support its listing. If the department removes a water body because there is a lack of sufficient credible data to support its listing, the department shall monitor and assess that water body during the next field season or as soon as possible thereafter to determine whether it is a threatened water body or an impaired water body.
(7) In prioritizing water bodies for TMDL development, the department shall, in consultation with the statewide TMDL advisory group established pursuant to subsection (9), take into consideration the following:
(a) the beneficial uses established for a water body;
(b) the extent that natural factors over which humans have no control are contributing to any impairment;
(c) the impacts to human health and aquatic life;
(d) the degree of public interest and support;
(e) the character of the pollutant and the severity and magnitude of water quality standard noncompliance;
(f) whether the water body is an important high-quality resource in an early stage of degradation;
(g) the size of the water body not achieving standards;
(h) immediate programmatic needs such as waste load allocations for new permits or permit renewals and load allocations for new nonpoint sources;
(i) court orders and decisions relating to water quality;
(j) state policies and priorities, including the protection and restoration of native fish when appropriate;
(k) the availability of technology and resources to correct the problems;
(l) whether actions or voluntary programs that are likely to correct the impairment of a particular water body are currently in place; and
(m) the recreational, economic, and aesthetic importance of a particular water body.
(8) The department shall, in consultation with the statewide TMDL advisory group, develop a method of rating water bodies according to the criteria and considerations described in subsection (7) in order to rank the listed water bodies as high priority, moderate priority, or low priority for TMDL development. The department may not rank a water body as a high priority under this section without first validating the data necessary to support the ranking.
(9) (a) The department shall establish a statewide TMDL advisory group to serve in the consultation capacity set forth in [section 5(2)(a)] and subsections (7) and (8) of this section. Fourteen members must be appointed by the director, based upon one nomination from each of the following interests:
(i) livestock-oriented agriculture;
(ii) farming-oriented agriculture;
(iii) conservation or environmental interests;
(iv) water-based recreationists;
(v) the forestry industry;
(vii) point source dischargers;
(ix) federal land management agencies;
(x) state trust land management agencies;
(xi) supervisors of soil and water conservation districts for counties east of the continental divide;
(xii) supervisors of soil and water conservation districts for counties west of the continental divide;
(xiii) the hydroelectric industry; and
(xiv) fishing-related businesses.
(b) If the director receives more than one nomination from a particular interest, the director shall notify the respective nominators and request that they agree on one nominee.
(10) The department shall provide public notice of meetings of the statewide TMDL advisory group and shall solicit, document, and consider public comments provided during the deliberations of the advisory group.
Section 4. Development and implementation of total maximum daily loads. (1) The department shall, in consultation with local conservation districts and watershed advisory groups, develop total maximum daily loads or TMDLs for threatened or impaired water bodies or segments of water bodies in order of the priority ranking established by the department under [section 3]. Each TMDL must be established at a level that will achieve compliance with applicable water quality standards and must include a reasonable margin of safety that takes into account any lack of knowledge concerning the relationship between the TMDL and water quality standards. The department shall consider applicable guidance from the federal environmental protection agency, as well as the environmental, economic, and social costs and benefits of developing and implementing a TMDL.
(2) In establishing TMDLs under subsection (1), the department may establish waste load allocations for point sources, and load allocations for nonpoint sources as set forth in subsection (8), and may allow for effluent trading. The department shall, in consultation with local conservation districts and watershed advisory groups, develop reasonable land, soil, and water conservation practices specifically recognizing established practices and programs for nonpoint sources.
(3) Within 10 years from [the effective date of this act], the department shall develop TMDLs for all water bodies on the list of waters that are threatened or impaired, as that list reads on [the effective date of this act]. This provision does not apply to water bodies that are subsequently added or removed from the list according to the provisions of [section 3]. Within 1 year from [the effective date of this act], the department shall establish a schedule for completing the TMDLs within the 10-year period established by this subsection. The schedule must also provide a reasonable timeframe for TMDL development for impaired and threatened water bodies that are listed subsequent to [the effective date of this act] and are prioritized as set forth in [section 3].
(4) The department shall provide guidance for TMDL development on any threatened or impaired water body, regardless of its priority ranking, if the necessary funding and resources from sources outside the department are available to develop the TMDL and to monitor the effectiveness of implementation efforts. The department shall review the TMDL and either approve or disapprove the TMDL. If the TMDL is approved by the department, the department shall ensure implementation of the TMDL according to the provisions of subsections (6) through (8).
(5) For water bodies listed under [section 3], the department shall provide assistance and support to landowners, local conservation districts, and watershed advisory groups for interim measures that may restore water quality and remove the need to establish a TMDL, such as informational programs regarding control of nonpoint source pollution and voluntary measures designed to correct impairments. When a source implements voluntary measures to reduce pollutants prior to development of a TMDL, those measures, whether or not reflected in subsequently issued waste discharge permits, must be recognized in development of the TMDL in a way that gives credit for the pollution reduction efforts.
(6) After development of a TMDL and upon approval of the TMDL, the department shall:
(a) incorporate the TMDL into its current continuing planning process;
(b) incorporate the waste load allocation developed for point sources during the TMDL process into appropriate water discharge permits; and
(c) assist and inform landowners regarding the application of a voluntary program of reasonable land, soil, and water conservation practices developed pursuant to subsection (2).
(7) Once the control measures identified in subsection (6) have been implemented, the department shall develop a monitoring program to assess the waters that are subject to the TMDL to determine whether compliance with water quality standards has been attained for a particular water body or whether the water body is no longer threatened. The monitoring program must be designed based on the specific impairments or pollution sources. The department's monitoring program must include long-term monitoring efforts for the analysis of the effectiveness of the control measures developed.
(8) The department shall support a voluntary program of reasonable land, soil, and water conservation practices to achieve compliance with water quality standards for nonpoint source activities for water bodies that are subject to a TMDL developed and implemented pursuant to this section.
(9) If the monitoring program provided under subsection (7) demonstrates that the TMDL is not achieving compliance with applicable water quality standards within 5 years after approval of a TMDL, the department shall conduct a formal evaluation of progress in restoring water quality and the status of reasonable land, soil, and water conservation practice implementation to determine if:
(a) the implementation of a new or improved phase of voluntary reasonable land, soil, and water conservation practice is necessary;
(b) water quality is improving but a specified time is needed for compliance with water quality standards; or
(c) revisions to the TMDL are necessary to achieve applicable water quality standards.
(10) Pending completion of a TMDL on a water body listed pursuant to [section 3]:
(a) point source discharges to a listed water body may commence or continue, provided that:
(i) the discharge is in conformance with a discharge permit that reflects, in the manner and to the extent applicable for the particular discharge, the provisions of 75-5-303;
(ii) the discharge will not cause a decline in water quality for parameters by which the water body is impaired; and
(iii) minimum treatment requirements adopted pursuant to 75-5-305 are met;
(b) the issuance of a discharge permit may not be precluded because a TMDL is pending;
(c) new or expanded nonpoint source activities affecting a listed water body may commence and continue their activities provided those activities are conducted in accordance with reasonable land, soil, and water conservation practices;
(d) for existing nonpoint source activities, the department shall continue to utilize educational nonpoint source control programs and voluntary measures as provided in subsections (5) and (6).
(11) This section may not be construed to prevent a person from filing an application or petition under 75-5-302, 75-5-310, or 75-5-312.
Section 5. Watershed advisory groups. (1) In implementing the consultation requirements under [sections 3(4) and 4(1) and (2)], the department shall request the participation of representatives of the following interest groups to work in an advisory capacity with the local conservation districts and the department:
(a) livestock-oriented agriculture;
(b) farming-oriented agriculture;
(c) conservation or environmental interests;
(d) water-based recreationists;
(e) the forestry industry;
(g) affected or potentially affected point source dischargers;
(i) existing local watershed groups;
(j) federal land management agencies;
(k) state trust land management agencies;
(l) the tourism industry;
(m) the hydroelectric industry, if applicable; and
(n) fishing-related businesses.
(2) In implementing the consultation requirements of [sections 3 and 4], the department shall:
(a) prior to consultation with the statewide TMDL advisory group pursuant to [section 2(7) and (8)], schedule meetings with appropriate local conservation districts and the watershed advisory groups at a location within their affected geographic area to review and revise the list of water bodies provided for in [section 3]; and
(b) at a meeting held pursuant to subsection (2)(a), request whether there is new information that may affect the listing or priority ranking on water bodies within the affected area and solicit comments on revising the list.
(3) Based upon the information provided pursuant to subsection (2)(b), the department shall revise the list according to [section 3].
(4) Prior to and during the development of a TMDL within a particular watershed or basin, the department shall schedule a meeting or meetings with appropriate local conservation districts and watershed advisory groups at a location within the affected geographic area in order to solicit comments on developing the TMDL and information on sources that may be contributing to water quality impairment.
Section 6. Nonimpairment of water rights. Nothing in [this act] may be construed to divest, impair, or diminish any water right recognized pursuant to Title 85.
Section 7. Codification instruction. [Sections 2 through 6] are intended to be codified as an integral part of Title 75, chapter 5, part 7, and the provisions of Title 75, chapter 5, part 7, apply to [sections 2 through 6].
Section 8. Effective date. [This act] is effective on passage and approval.