_________ Bill No. _______

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act specifying that state certification under the federal Clean Water Act is presumed for nonpoint source activities on federal lands under certain conditions; directing the amendment of ARM 17.30.103; and providing an immediate effective date."

WHEREAS, section 401 of the federal Clean Water Act, 33 U.S.C. 1341, requires state certification for activities that require a federal license or permit and that may result in a discharge to state waters, to ensure that those activities will comply with water quality requirements adopted by the state; and

WHEREAS, the term "discharge" has recently been interpreted by a federal District Court in the State of Oregon to include nonpoint source activities, specifically the issuance of a grazing permit on Forest Service lands, that may require section 401 certification from the state prior to issuance of the grazing permit; and

WHEREAS, application of current section 401 certification rules to nonpoint activities, such as grazing and timber harvesting on federal lands, would create an unnecessary application and review process, would be unduly burdensome to applicants and administrators of the state's water quality programs, and is properly not considered within the requirements of section 401; and

WHEREAS, the State of Montana has actively developed a nonpoint source management program that includes measures to address nonpoint source pollution, including prescribed grazing practices that have been developed in cooperation with the Bureau of Land Management and the U.S. Forest Service.

Be it enacted by the Legislature of the State of Montana:

Section 1. The Board of Environmental Quality shall amend ARM 17.30.103 to read:

"17.30.103. APPLICATION FOR CERTIFICATION (1) A person may not conduct or commence construction for any activity requiring state water quality certification under 33 USC section 1341, as amended, unless the department has issued certification, issued with conditions, or waived certification under this subchapter.

(2) The Except as provided in subsection (7), the applicant, the licensing or permitting agency, or the regional administrator (under 40 CFR 121.13) shall submit to the department a complete description of the activity for which certification is sought, including:

(a) the name and address of the applicant;

(b) a description of the facility or activity and of any discharge which may result from the facility or activity, including but not limited to:

(i) the volume of the discharge;

(ii) the biological, chemical, physical, and radiological characteristics of the discharge;

(iii) a description of the existing environment at the site of the discharge;

(iv) the size of the area affected;

(v) the location or locations at which the discharge may enter state waters; and

(vi) any environmental impact assessment, information, maps, and photographs which have been provided to the licensing or permitting agency;

(c) a description of the function and operation of equipment, facilities, activities, or practices to minimize or to treat wastes or other effluents which may be discharged, including the degree of treatment expected to be attained;

(d) the date or dates on which the activity is proposed to begin and end, if known, and the date or dates on which the discharge will take place; and

(e) a description of the methods being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment or control of pollutants.

(3) The department may exempt an applicant from the information requirements of (2)(b), (c), and (e) of this rule, if the applicant's federal permit application is to the United States army corps of engineers under section 404 of the federal Clean Water Act, 33 USC 1344, as amended, and the federal permit application provides the information required under these sections.

(4) The department shall review the application for completeness within 30 days of receipt of the application. If the application is not complete, the department shall notify the applicant of any additional materials reasonably necessary for review of the application.

(5) The applicant shall submit in timely fashion, at any time during the review process, any new information or modifications of the facility or activity which are pertinent to the department's certification responsibilities.

(6) An application is deemed complete if:

(a) the department has not made a determination within 30 days after receipt of the application or, subsequent to receipt of the initial application, within 30 days of receipt of materials submitted by the applicant that supplement the application; or

(b) the department notifies the applicant that the application is complete.

(7) All nonpoint source activities that require a federal permit or license and certification under 33 USC 1341, as amended, are certified if the federal license or permit requires the use of all reasonable land, soil, and water conservation practices. An application is not required for such activities."

NEW SECTION. Section 2.  Effective date. [This act] is effective on passage and approval.