HOUSE BILL NO. 666
INTRODUCED BY K. OHS
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING THE SANITATION IN SUBDIVISIONS ACT; ESTABLISHING LOCAL PROGRAMS REGULATING SANITATION IN SUBDIVISIONS; CREATING A TECHNICAL ADVISORY COUNCIL; REQUIRING INSPECTIONS PRIOR TO INSTALLATION OF SEWAGE SYSTEMS; REQUIRING NOTIFICATION TO SUBSEQUENT PURCHASERS OF THE CONDITIONS OF SUBDIVISION APPROVAL; PROHIBITING THE REVIEW AND APPROVAL OF WATER SUPPLIES AND SANITARY FACILITIES IN SUBDIVISIONS BY LOCAL UNITS OF GOVERNMENT UNLESS A LOCAL PROGRAM HAS BEEN APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL QUALITY; REQUIRING THE RECORDING OF A CERTIFICATE OF SUBDIVISION APPROVAL; CLARIFYING THE MASTER PLAN AND MUNICIPALITY EXEMPTIONS; AMENDING SECTIONS 50-2-116, 75-5-305, 76-3-102, 76-3-501, 76-3-504, 76-3-511, 76-4-102, 76-4-104, 76-4-105, 76-4-106, 76-4-107, 76-4-108, 76-4-111, 76-4-121, 76-4-122, 76-4-123, 76-4-124, 76-4-125, 76-4-126, 76-4-127, 76-4-129, 76-4-130, 76-4-132, AND 76-4-135, MCA; REPEALING SECTION 76-4-128, MCA; AND PROVIDING APPLICABILITY DATES."
WHEREAS, under current law, both the department of environmental quality and county commissioners are required to regulate sewage disposal that is associated with subdivisions of land that result in parcels less than 20 acres in size; and
WHEREAS, under current laws, the local boards of health may also regulate sewage disposal in these subdivisions; and
WHEREAS, due to the concurrent state and local regulatory authority, conflicts have arisen regarding the appropriate design and installation requirements for sewage disposal systems; and
WHEREAS, there is no mechanism under current law to resolve these conflicts; and
WHEREAS, due to these unresolved conflicts, individuals have been subjected to both state and local regulations, even when those regulations conflict and compliance with both sets of regulations is impossible; and
WHEREAS, this situation has diminished or eliminated private property rights, decreased housing affordability, increased court costs for government units and the regulated community, and increased regulatory costs due to the inherent inefficiency of the regulatory framework; and
WHEREAS, there is no objective entity that is charged with evaluating current sewage disposal standards, evaluating new technologies, reviewing local government disposal regulations, and advising the department of environmental quality regarding disposal standards; and
WHEREAS, an objective entity, composed of qualified technical representatives from the interested parties, would help reduce and resolve potential conflicts, thus saving time and money for the regulated community and state and local governments.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 50-2-116, MCA, is amended to read:
"50-2-116. Powers and duties of local boards. (1) Local boards shall:
(a) appoint a local health officer who is a physician or a person with a master's degree in public health or the equivalent and with appropriate experience, as determined by the department, and shall fix the health officer's salary;
(b) elect a presiding officer and other necessary officers;
(c) employ necessary qualified staff;
(d) adopt bylaws to govern meetings;
(e) hold regular meetings quarterly and hold special meetings as necessary;
(f) supervise destruction and removal of all sources of filth that cause disease;
(g) guard against the introduction of communicable disease;
(h) supervise inspections of public establishments for sanitary conditions;
(i) subject to the provisions of 50-2-130 and this subsection (1)(a)(i), adopt necessary regulations that are not less
stringent than state standards adopted by the board of environmental review under 75-5-305 for the control and disposal of
sewage from private and public buildings that is not regulated by Title 75, chapter 6, or Title 76, chapter 4. The regulations
must describe standards for granting variances from the minimum local board's requirements that are identical to consistent
with standards for granting variances promulgated by the board of environmental review and must provide for appeal of
variance decisions to the department as required by 75-5-305. The regulations required under this subsection (1)(a)(i) do
not apply to:
(i) sewage disposal systems that are regulated under Title 75, chapter 6; or
(ii) the approval and installation of sewage disposal systems that are regulated under Title 76, chapter 4, unless the local board has been delegated authority by the department pursuant to [section 2].
(2) Local boards may:
(a) quarantine persons who have communicable diseases;
(b) require isolation of persons or things that are infected with communicable diseases;
(c) furnish treatment for persons who have communicable diseases;
(d) prohibit the use of places that are infected with communicable diseases;
(e) require and provide means for disinfecting places that are infected with communicable diseases;
(f) accept and spend funds received from a federal agency, the state, a school district, or other persons;
(g) contract with another local board for all or a part of local health services;
(h) reimburse local health officers for necessary expenses incurred in official duties;
(i) abate nuisances affecting public health and safety or bring action necessary to restrain the violation of public health laws or rules;
(j) as provided by law, adopt necessary fees to administer regulations for the control and disposal of sewage from private and public buildings, including fees to administer site evaluations authorized by 76-4-125(1)(a) or to inspect pursuant to 76-4-106 or 76-4-107. The fees must be deposited with the county treasurer.
(k) adopt rules that do not conflict with rules adopted by the department:
(i) for the control of communicable diseases;
(ii) for the removal of filth that might cause disease or adversely affect public health;
(iii) subject to the provisions of 50-2-130, on sanitation in public buildings that affects public health;
(iv) for heating, ventilation, water supply, and waste disposal in public accommodations that might endanger human lives;
(v) subject to the provisions of 50-2-130, for the maintenance of sewage treatment systems that do not discharge an effluent directly into state waters and that are not required to have an operating permit as required by rules adopted under 75-5-401; and
(vi) for the regulation, as necessary, of the practice of tattooing, which may include registering tattoo artists, inspecting tattoo establishments, adopting fees, and also adopting sanitation standards that are not less stringent than standards adopted by the department pursuant to 50-1-202. For the purposes of this subsection, "tattoo" means making permanent marks on the skin by puncturing the skin and inserting indelible colors.
(l) adopt necessary fees, as provided by law, to administer site evaluations authorized in 76-4-125(1)(a) or to inspect pursuant to 76-4-106 or 76-4-107; and
(m) adopt rules to implement and administer a certified installers program for the purpose of training, testing, and certifying installers of onsite wastewater treatment systems."
NEW SECTION. Section 2. Local review and approval of sanitation in subdivisions. (1) After a public hearing, a local board of health, a board of county commissioners, or the governing body of a consolidated city-county government may be delegated authority and may establish and administer a local program regulating sanitation in subdivisions within its jurisdiction, if the program is consistent with the requirements of this chapter and is approved by the department.
(2) A local board of health, a board of county commissioners, or the governing body of a consolidated city-county government seeking to be delegated authority and establish and administer its own program regulating sanitation in subdivisions shall submit to the department a full and complete description of the program that it intends to establish and administer. As part of its submittal, the local board of health, board of county commissioners, or the governing body of a consolidated city-county government must submit to the department proposed regulations that are not less stringent than the department's standards for sewage control and disposal, water supply, solid waste disposal, and storm water drainage. If the proposed regulations are more stringent than the standards adopted by the department under 76-4-104(3), the local board of health, the board of county commissioners, or the governing body of a consolidated city-county government shall submit to the department the written findings required by 76-4-135. Only one entity among a county's local board of health, county commissioners, or governing body of a consolidated city-county government may apply for program approval under this section.
(3) The department shall approve a submitted program if it finds that:
(a) the local laws or ordinances are not less stringent than the department's standards adopted pursuant to 76-4-104(3), and, if more stringent, that the provisions of 76-4-135 have been met;
(b) the applicant has sufficient qualified staff and funding to conduct the program and the staff has been certified by the department pursuant to standards adopted under 76-4-104; and
(c) the applicant's program allows a person aggrieved by the applicant's denial or conditional approval of subdivision plans and specifications under this part to appeal that denial or conditional approval to the local government governing body, to the department, or to the board, as provided in 76-4-126.
(4) Upon approval of a program submitted under subsection (1), the local board of health, local governing body, or the governing body of a consolidated city-county government shall adopt the proposed local laws or ordinances that have been approved by the department. The department shall immediately cease accepting applications for its review and approval of subdivisions located in a county with an approved program, after being notified by the local program that it has adopted the local laws and ordinances approved by the department. Applications received by the department prior to the adoption of approved local laws and ordinances must be reviewed by the department.
(5) The department shall conduct an annual review to determine whether a local subdivision program approved under this section and any modifications to that program are in accordance with this chapter. An annual review conducted under this section must include but is not limited to the following:
(a) an analysis of whether or not the local program has sufficient qualified staff and funding to administer the local program;
(b) an analysis of the procedures used for the review of subdivisions, including recordkeeping and documentation of the technical information and standards used during the review and approval process;
(c) an evaluation of whether the review of subdivisions conducted by a local program is in substantial compliance with the requirements of Title 75, chapter 5, and this chapter; and
(d) a review of local enforcement of the requirements of this chapter.
(6) (a) If the department determines or has reason to believe that a local program is not administering a program approved under this section in accordance with the requirements of this chapter, the department shall notify the local program and allow the local program 30 days to respond.
(b) After the 30-day response period, if the department determines that any part of the local program is inadequate or being administered in a manner inconsistent with this chapter, the department shall notify the local program in writing and request corrective measures be taken within a reasonable time, not to exceed 60 days. If the corrective action is not taken within the time required, the department shall revoke its approval and administer this chapter within the disapproved program's jurisdiction. The department's rules implementing this chapter supercede local ordinances or regulations adopted by the local government for the approval and installation of sewage disposal systems regulated under Title 76, chapter 4.
(7) Upon denial of program approval, or upon revocation of an approved program, the local board of health, board of county commissioners, or the governing body of a consolidated city-county government aggrieved by the department's decision may request a hearing before the board. The hearing must be held under the requirements of the Montana Administrative Procedure Act. After the hearing, the board may either affirm or rescind the decision of the department to revoke or deny a local program delegation.
(8) Department approval of a local subdivision program under this section does not delegate to a local board of health, a board of county commissioners, or the governing body of a consolidated city-county government the authority to review and approve public water supply and sewage systems under Title 75, chapter 6.
NEW SECTION. Section 3. Notification to purchasers. The developer or current owner shall provide each purchaser of property within a subdivision a copy of the plat or certificate of survey and the department's or local program's certification of subdivision approval specifying the approved locations of water supply and sewage treatment systems. Each subsequent instrument of transfer for each property made after the initial notification must contain reference to the conditions of the certificate of subdivision approval.
NEW SECTION. Section 4. Installation inspection. A person who owns or controls a parcel of land that has been approved for the installation of an individual or multiple family sewage system pursuant to this chapter shall:
(1) during installation of the system, have the system inspected by a registered sanitarian, county-certified installer, or registered professional engineer; and
(2) except for those systems inspected by local board of health personnel or a county-certified installer, before commencing operation of the system, file with the local board of health a certification from the person inspecting the system pursuant to subsection (1) that the system has been installed in substantial compliance with the approved plans and specifications and any conditions of approval imposed by the department or local program.
NEW SECTION. Section 5. Onsite wastewater technical advisory group. (1) There is an onsite wastewater technical advisory group.
(2) The group consists of nine members appointed by the director of the department of environmental quality. Each member must have demonstrated expertise with onsite sanitation systems and issues. The director shall appoint at least one representative from the following sectors to serve on the group:
(a) local boards or departments of health;
(b) the university system;
(c) licensed professional engineers;
(d) soil scientists or geologists;
(e) consultants;
(f) installers; and
(g) department of environmental quality staff.
(3) The group shall meet as often as necessary, but at least twice a year.
(4) The term of group membership is 3 years. Each member may be reappointed at the discretion of the director. Initial membership terms must be staggered with three members each serving 1-year, 2-year, and 3-year terms, respectively.
(5) The duties of the group include but are not limited to those specified in [section 6].
(6) The provisions of 2-15-122 (5) through (8) apply to the group and its members.
NEW SECTION. Section 6. Technical advisory group. (1) As often as necessary and at least every 2 years, the onsite wastewater technical advisory group created pursuant to [section 5] shall:
(a) review and evaluate the adequacy and appropriateness of existing minimum onsite sewage disposal system requirements developed pursuant to 76-4-104;
(b) recommend for department adoption needed revisions to minimum onsite sewage disposal system requirements;
(c) review and evaluate the adequacy and appropriateness of existing advanced onsite sewage disposal system regulations;
(d) recommend for adoption by the department or board alternative onsite sewage disposal systems to be required in instances of site limitations; and
(e) review and evaluate the results of monitoring and research programs applicable to onsite sanitation and recommend areas for additional research.
(2) As often as necessary, the technical advisory group shall review and comment on the applications for delegated authority received by the department under [section 2]. The group shall review the applications for compliance with the standards adopted under 76-4-104 and for compliance with the requirements of 76-4-135.
Section 7. Section 75-5-305, MCA, is amended to read:
"75-5-305. Adoption of requirements for treatment of wastes -- variance procedure -- appeals. (1) The board may establish minimum requirements for the treatment of wastes. For cases in which the federal government has adopted technology-based treatment requirements for a particular industry or activity in 40 CFR, chapter I, subchapter N, the board shall adopt those requirements by reference. To the extent that the federal government has not adopted minimum treatment requirements for a particular industry or activity, the board may do so, through rulemaking, for parameters likely to affect beneficial uses, ensuring that the requirements are cost-effective and economically, environmentally, and technologically feasible. Except for the technology-based treatment requirements set forth in 40 CFR, chapter I, subchapter N, minimum treatment may not be required to address the discharge of a parameter when the discharge is considered nonsignificant under rules adopted pursuant to 75-5-301.
(2) The board shall establish minimum requirements for the control and disposal of sewage from private and public buildings, including standards and procedures for variances from the requirements.
(3) An applicant for a variance from minimum requirements a requirement adopted by a local board of health pursuant
to 50-2-116(1)(i) may appeal the local board of health's final decision to the department by submitting a written request for
a hearing within 30 days after the decision. The written request must describe the activity for which the variance is
requested, include copies of all documents submitted to the local board of health in support of the variance, and specify the
reasons for the appeal of the local board of health's final decision as provided in 76-4-126.
(4) The department shall conduct a hearing on the request pursuant to Title 2, chapter 4, part 6. Within 30 days after the
hearing, the department shall grant, conditionally grant, or deny the variance. The department shall base its decision on the
board's standards for a variance.
(5) A decision of the department pursuant to subsection (4) is appealable to district court under the provisions of Title
2, chapter 4, part 7."
Section 8. Section 76-3-102, MCA, is amended to read:
"76-3-102. Statement of purpose. It is the purpose of this chapter to:
(1) promote the public health, safety, and general welfare by regulating the subdivision of land;
(2) prevent overcrowding of land;
(3) lessen congestion in the streets and highways;
(4) provide for adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and
other public requirements;
(5) require development in harmony with the natural environment;
(6) protect the rights of property owners; and
(7) require uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey."
Section 9. Section 76-3-501, MCA, is amended to read:
"76-3-501. Local subdivision regulations. (1) Before July 1, 1974, the The governing body of every county, city, and
town shall adopt and provide for the enforcement and administration of subdivision regulations reasonably providing for
the:
(a) orderly development of their jurisdictional areas; for
(b) the coordination of roads within subdivided land with other roads, both existing and planned; for
(c) the dedication of land for roadways and for public utility easements; for
(d) the improvement of roads; for
(e) the provision of adequate open spaces for travel, light, air, and recreation; for
(f) the provision of adequate transportation, water, and drainage; subject to the provisions of 76-3-511, for the
regulation of sanitary facilities; for
(g) the avoidance or minimization of congestion; and for
(h) the avoidance of subdivision which that would involve unnecessary environmental degradation and the avoidance of
danger of injury to health, safety, or welfare by reason of natural hazard or the lack of water, drainage, access,
transportation, or other public services or would necessitate an excessive expenditure of public funds for the supply of such
the services.
(2) Review and approval or disapproval of a subdivision under this chapter may occur only under those regulations in effect at the time an application for approval of a preliminary plat or for an extension under 76-3-610 is submitted to the governing body."
Section 10. Section 76-3-504, MCA, is amended to read:
"76-3-504. Minimum requirements for subdivision regulations. The subdivision regulations adopted under this
chapter shall must, at a minimum:
(1) require the subdivider to submit to the governing body an environmental assessment as prescribed in 76-3-603;
(2) establish procedures consistent with this chapter for the submission and review of subdivision plats;
(3) prescribe the form and contents of preliminary plats and the documents to accompany final plats;
(4) provide for the identification of areas that, because of natural or human-caused hazards, are unsuitable for subdivision development and prohibit subdivisions in these areas unless the hazards can be eliminated or overcome by approved construction techniques;
(5) prohibit subdivisions for building purposes in areas located within the floodway of a flood of 100-year frequency as defined by Title 76, chapter 5, or determined to be subject to flooding by the governing body;
(6) prescribe standards for:
(a) the design and arrangement of lots, streets, and roads;
(b) grading and drainage; and
(c) subject to the provisions of 76-3-511, water supply and sewage and solid waste disposal that, at a minimum, meet
the regulations adopted by the department of environmental quality under 76-4-104;
(d)(c) the location and installation of utilities;
(7) provide procedures for the administration of the park and open-space requirements of this chapter;
(8) provide for the review of preliminary plats by affected public utilities and those agencies of local, state, and federal government having a substantial interest in a proposed subdivision. A utility or agency review may not delay the governing body's action on the plat beyond the time limits specified in this chapter, and the failure of any agency to complete a review of a plat may not be a basis for rejection of the plat by the governing body."
Section 11. Section 76-3-511, MCA, is amended to read:
"76-3-511. Local regulations no more stringent than state regulations or guidelines. (1) Except as provided in subsections (2) through (4) or unless required by state law, a governing body may not adopt a rule under 76-3-501 or 76-3-504(6)(c) that is more stringent than the comparable state regulations or guidelines that address the same circumstances. The governing body may incorporate by reference comparable state regulations or guidelines.
(2) The governing body may adopt a rule to implement 76-3-501 or 76-3-504(6)(c) that is more stringent than
comparable state regulations or guidelines only if the governing body makes a written finding, after a public hearing and
public comment and based on evidence in the record, that:
(a) the proposed local standard or requirement protects public health or the environment; and
(b) the local standard or requirement to be imposed can mitigate harm to the public health or environment and is achievable under current technology.
(3) The written finding must reference information and peer-reviewed scientific studies contained in the record that forms the basis for the governing body's conclusion. The written finding must also include information from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed local standard or requirement.
(4) (a) A person affected by a rule of the governing body adopted after January 1, 1990, and before April 14, 1995, that that person believes to be more stringent than comparable state regulations or guidelines may petition the governing body to review the rule. If the governing body determines that the rule is more stringent than comparable state regulations or guidelines, the governing body shall comply with this section by either revising the rule to conform to the state regulations or guidelines or by making the written finding, as provided under subsection (2), within a reasonable period of time, not to exceed 12 months after receiving the petition. A petition under this section does not relieve the petitioner of the duty to comply with the challenged rule. The governing body may charge a petition filing fee in an amount not to exceed $250.
(b) A person may also petition the governing body for a rule review under subsection (4)(a) if the governing body adopts a rule after January 1, 1990, in an area in which no state regulations or guidelines existed and the state government subsequently establishes comparable regulations or guidelines that are less stringent than the previously adopted governing body rule."
Section 12. Section 76-4-102, MCA, is amended to read:
"76-4-102. Definitions. As used in this part, unless the context clearly indicates otherwise, the following words or phrases have the following meanings:
(1) "Adequate municipal facilities" means municipally owned or other publicly or privately owned facilities that supply water or treat sewage for all or most properties within the boundaries of a municipality and that are operating in compliance with Title 75, chapters 5 and 6.
(1)(2) "Board" means the board of environmental review.
(2)(3) "Department" means the department of environmental quality.
(3)(4) "Extension of public sewage disposal system" means a sewer line that connects two or more sewer service lines
to a sewer main.
(4)(5) "Extension of public water supply system" means a water line that connects two or more water service lines to a
water main.
(5)(6) "Facilities" means public or private facilities for the supply of water or disposal of sewage or solid waste and any
pipes, conduits, or other stationary method by which water, sewage, or solid wastes might be transported or distributed.
(7) (a) "Local program" means a local board, as defined in Title 50, chapter 2, or a board of county commissioners, or the governing body of a consolidated city-county local government that has obtained and maintained department approval to administer and enforce the requirements of this chapter, as provided in [section 2].
(b) The term does not include a city board of health established under Title 50, chapter 2.
(8) "Mixing zone" has the meaning as defined in 75-5-103.
(6)(9) "Public water supply system" or "public sewage disposal system" means, respectively, a water supply or sewage
disposal system that serves 10 or more families or 25 or more persons for at least 60 days out of the calendar year has the
meaning as defined in Title 75, chapter 6.
(7)(10) "Registered professional engineer" means a person licensed to practice as a professional engineer under Title 37,
chapter 67.
(8)(11) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37, chapter 40.
(9) "Reviewing authority" means the department or a local department or board of health certified to conduct a review
under 76-4-104.
(10)(12) "Sanitary restriction" means a prohibition against the erection of any dwelling, shelter, or building requiring
facilities for the supply of water or the disposition of sewage or solid waste or the construction of water supply or sewage or
solid waste disposal facilities until the department or a local program has approved plans for those facilities.
(11)(13) "Sewer service line" means a sewer line that connects a single building or living unit to a public sewer system
or extension of a system.
(12)(14) "Solid wastes" means all putrescible and nonputrescible solid wastes (except body wastes), including garbage,
rubbish, street cleanings, dead animals, yard clippings, and solid market and solid industrial wastes means solid waste, as
defined in 75-10-103.
(13)(15) "Subdivision" means a division of land or land so divided that creates one or more parcels containing less than
20 acres, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or
otherwise conveyed and includes any resubdivision and any condominium or area, regardless of size, that provides
permanent multiple space for recreational camping vehicles or mobile homes.
(14)(16) "Water service line" means a water line that connects a single building or living unit to a public water system or
extension of a system."
Section 13. Section 76-4-104, MCA, is amended to read:
"76-4-104. Rules for administration and enforcement. (1) The department and a local program shall, subject to the provisions of 76-4-135, adopt reasonable rules, including adoption of sanitary standards, necessary for administration and enforcement of this part.
(2) The rules and standards adopted by the department and by a local program must provide the basis for approving
subdivision plats subdivisions for various types of water supplies, sewage facilities, and solid waste disposal, both public
and private, and storm water drainage and must be related to:
(a) size of lots;
(b) contour of land;
(c) porosity of soil;
(d) ground water level;
(e) distance from lakes, streams, and wells;
(f) type and construction of private water and sewage facilities; and
(g) other factors affecting public health and the quality of water for uses relating to agriculture, industry, recreation, and wildlife.
(3) The rules must provide for the review of the following divisions of land by a local department or board of health, as
described in Title 50, chapter 2, part 1, if the local department or board of health employs a registered sanitarian or a
registered professional engineer and if the department certifies under subsection (4) that the local department or board is
competent to review these divisions of land:
(a) divisions of land containing five or fewer parcels, whenever each parcel will contain individual onsite water and
sewage disposal facilities; and
(b) divisions of land proposed to connect to existing municipal water and wastewater systems previously approved by
the department if no extension of the systems is required.
(4) The department shall also adopt standards and procedures for certification and maintaining certification to ensure
that a local department or board of health is competent to review the divisions of land described in subsection (3).
(5) The department shall review those divisions of land described in subsection (3) if:
(a) a proposed division of land lies within more than one jurisdictional area and the respective governing bodies are in
disagreement concerning approval of or conditions to be imposed on the proposed subdivision; or
(b) the local department or board of health elects not to be certified.
(6)(3) The rules of the department and of a local program must further provide for:
(a) providing the reviewing authority department or a local program with a copy of the plat or certificate of survey and
other documentation showing the layout or plan of development, including:
(i) total development area;
(ii) total number of proposed dwelling units and structures requiring facilities for water supply or sewage disposal;
(b) adequate evidence that a water supply that is sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed;
(c) evidence concerning the potability of the proposed water supply for the subdivision;
(d) adequate evidence that a sewage disposal facility is sufficient in terms of capacity and dependability;
(e) standards and technical procedures applicable to storm drainage plans and related designs, in order to ensure proper
drainage ways;
(f) standards and technical procedures applicable to sanitary sewer plans and designs, including soil percolation testing
and required percolation rates and site design standards for on-lot onsite sewage disposal systems when applicable;
(g) standards and technical procedures applicable to water systems;
(h) standards and technical procedures applicable to solid waste disposal;
(i) criteria for granting deviations from the standards and technical procedures adopted under subsections (3)(e) through (3)(h);
(i)(j) evidence to establish that, if a connection to a public sewage disposal or water supply system is proposed,
provision has been made for the connection to the system and, if other methods of sewage disposal or water supply are
proposed, evidence that the systems will comply with state and local applicable laws and regulations implementing this
chapter that are in effect at the time of submission of the preliminary or final plan or plat application for approval under this
chapter; and
(k) evidence to demonstrate that appropriate easements, agreements, and management entities have been established to ensure the long-term operation and maintenance of water supply, storm water drainage, and sewage disposal facilities.
(4) The department shall adopt standards and procedures for initial and continued certification of staff responsible for conducting review and approval for a local program to ensure that the local staff are qualified to review subdivisions regulated under this chapter.
(7)(5) If the reviewing authority a site evaluation is conducted by a local department or board of health, or if relevant
information is available to the local board of health, it shall, upon approval completion of its evaluation of a division of
land under this part, notify the department of the approval its recommendation for approval or disapproval and submit to
the department a copy of the approval statement its recommendation. The department shall give due weight and
consideration to the local board's recommendations.
(8)(6) Review and certification or denial of certification that a division of land is not subject to sanitary restrictions
under this part may occur only under those rules in effect at the time plans and specifications are submitted to the
department or a local program, except that in cases in which current rules would preclude the use for which the lot was
originally intended, the applicable requirements in effect at the time the lot was recorded must be applied. In the absence of
specific requirements, minimum standards necessary to protect public health and water quality apply.
(9)(7) The reviewing authority department or a local program may not deny or condition a certification of subdivision
approval on the basis that a division of land subdivision is not subject to sanitary restrictions under this part unless it
provides a written statement to the applicant detailing the circumstances of the certification denial or condition imposition.
The statement must include:
(a) the reason for the denial or condition imposition;
(b) the evidence that justifies the denial or condition imposition; and
(c) information regarding the appeal process for the denial or condition imposition."
Section 14. Section 76-4-105, MCA, is amended to read:
"76-4-105. Lot fees -- subdivision program funding. (1) The department or a local program may charge fees not to
exceed actual costs for reviewing subdivisions and for conducting inspections pursuant to 76-4-107 and 76-4-108. The
department shall adopt rules setting forth charge fees as allowed by rule as that rule read on November 3, 1998, or as
otherwise provided by law. that do not exceed actual costs to the department in reviewing plats and subdivisions. The rules
must provide for a schedule of fees to be paid by the applicant for plat or subdivision review to the department for deposit
in the state special revenue fund or, if applicable, to another reviewing authority for deposit in the general fund of the
reviewing authority's jurisdiction. A local program may charge fees as provided by law. The All fees collected pursuant to
this section must be used for review of plats and subdivisions based on the complexity of the subdivision, including but not
limited to:
(a) number of lots in the subdivision;
(b) the type of water system to serve the development;
(c) the type of sewage disposal to serve the development; and
(d) the degree of environmental research necessary to supplement the review procedure.
(2) The department shall adopt rules to determine the distribution of fees to the local governing body, as provided in
76-4-128.
(3)(2) A fee as described in this section is not required for the review of subdivisions in which divisions are made for
the purpose of relocating common boundary lines unless the division will result in the installation of additional water
supply or sewage disposal facilities.
(4)(3) Fees collected by the department under this section must be deposited in the account in the state special revenue
fund provided for in 76-4-132.
(4) Fees collected by a local program under this section must be deposited in a county special revenue fund provided for in 76-4-132."
Section 15. Section 76-4-106, MCA, is amended to read:
"76-4-106. Cooperation with other governmental agencies. (1) The reviewing authority department or local program
may require the use of records of all state, county, and municipal agencies and may seek the assistance of those agencies.
Assistance sought may include requesting a local board of health to conduct a site inspection prior to the department or
local program taking action under this chapter.
(2) State, county, and municipal officers and employees, including local health officers and sanitarians, shall cooperate
with the reviewing authority department or local program in furthering the purposes of this part so far as is practical and
consistent with their own duties.
(3) A local reviewing authority board of health without a registered sanitarian or a registered professional engineer to
conduct a review under this part may contract with another local reviewing authority board of health for the services of its
registered sanitarian or registered professional engineer to conduct the review under this part."
Section 16. Section 76-4-107, MCA, is amended to read:
"76-4-107. Authority to inspect and monitor -- certification. (1) In order to carry out the objectives of this part, to
monitor the installation of sewage disposal and water supply systems, and to prevent the occurrence of water pollution
problems associated with subdivision development, the reviewing authority department, a local program, or a local board of
health, whenever any water supply or sewage disposal system is proposed or has been constructed may:
(a) enter upon any public or private property, at reasonable times and after presentation of appropriate credentials by an
authorized representative of the reviewing authority department, local program, or a local board of health, to inspect such
the systems in order to assure ensure that the plans and specifications approved for the system have been adhered to and
that the provisions of this part, rules, or orders are being satisfied;. A local program or a local board of health may require
an installation permit prior to the construction, repair, replacement, or alteration of a sewage disposal system to ensure that
the system is installed according to the plans and specifications approved for that system by the department or a local
program.
(2) If an inspection conducted under subsection (1) reveals that compliance with the approved plans and specifications may endanger public health or cause pollution of state waters, the inspecting entity shall order that construction be halted and immediately notify the approving authority. If the approving authority determines that compliance with the approved plans and specifications will endanger public health or cause pollution of state waters, the owner of the property shall resubmit plans and specifications for the system to the approving authority. The approving authority shall review those plans and specifications according to the rules adopted pursuant to 76-4-104.
(b)(3) The department or local program may require as a condition of approval that records concerning the operation of
a sewage disposal or water supply system be maintained or that monitoring equipment or wells be installed, used, and
maintained for the collection of data related to water quality.
(2)(4) The reviewing authority department shall require certification from a registered professional engineer that a
public water supply system or a public sewage disposal system has been constructed according to approved specifications."
Section 17. Section 76-4-108, MCA, is amended to read:
"76-4-108. Enforcement. (1) If the reviewing authority department or a local program has reason to believe that a
violation of this part or a rule made under it has occurred, it may have written issue a notice of violation served personally
or by mail to the last-known address of the alleged violator or his the alleged violator's agent. The notice shall must state
the provision alleged to be violated, the facts alleged to constitute the violation, the corrective action required by the
reviewing authority department or a local program, and the time within which the action is to be taken. For the purpose of
this part, service by mail is complete on the date of mailing. The alleged violator may, no later than 30 days after service of
a notice and order under this section, request a hearing before the local governing body if a local program issued the notice
and order, or before the reviewing authority or the board if the department issued the notice and order. If a request is filed, a
hearing shall must be held within a reasonable time.
(2) In addition to or instead of issuing an order, the reviewing authority department or a local program may initiate
appropriate action to compel compliance with this part.
(3) The provisions of this part may be enforced by a reviewing authority other than the department or board only for
those divisions described in 76-4-104(3). If a local reviewing authority fails to adequately enforce the provisions of this
part, the department or the board may compel compliance with this part under the provisions of this section.
(4)(3) When a local reviewing authority local program exercises the authority delegated to it by this section, the local
reviewing authority local program shall accept legal responsibility for its actions under this part.
(5)(4) If a violation of this part is found to exist, a reviewing authority the department or a local program may revoke
amend a certificate of subdivision approval and reimpose sanitary restrictions on a subdivision the lot where the violation
occurred, following a hearing before the reviewing authority board under this section."
Section 18. Section 76-4-111, MCA, is amended to read:
"76-4-111. Exemption for certain condominiums and subdivisions. (1) Condominiums constructed on land divided in compliance with the Montana Subdivision and Platting Act and this part are exempt from provisions of this part.
(2) Whenever a parcel of land has previously been reviewed under either department requirements or local health a
local program's requirements and has received approval for a given number of living units for rental or lease, the
construction of the same or a fewer number of condominium units on that parcel is not subject to the provisions of this part,
provided that no new extension of a public water supply system or a public sewage disposal system is required as defined in
this part.
(3) Subdivisions located within master planning areas and first- or second-class municipalities that will be provided
with for which the governing body certifies that adequate municipal facilities are available for the supply of water and
disposal of sewage and solid waste and that storm water drainage is adequate are not subject to the provisions of this part;.
except that However, if the municipal facilities for water supply or sewage disposal to serve the subdivision constitute
either an extension of a public water supply system or a public sewage disposal system, the subdivision extension of the
public water supply or sewage disposal system must be reviewed in accordance with the provisions of 76-4-105, 76-4-124,
and 76-4-127 Title 75, chapter 6."
Section 19. Section 76-4-121, MCA, is amended to read:
"76-4-121. Restrictions on subdivision activities. (1) Until the local governing body has certified, pursuant to
76-4-127, that a subdivision is to be provided with adequate storm water drainage and adequate municipal facilities for a
the supply of water and disposal of sewage and solid waste or that the reviewing authority department or local program has
indicated issued a certificate of subdivision approval indicating that the subdivision is not subject to no restrictions, a
person may not file a subdivision plat or a certificate of survey with a county clerk and recorder, make disposition of any lot
within a subdivision, erect any facility for the supply of water or disposal of sewage or solid waste, erect any building or
shelter in a subdivision which requires facilities for the supply of water or disposal of sewage or solid waste, or occupy any
permanent buildings in a subdivision.
(2) Whenever a certificate of subdivision approval from the department or local program is required, the restrictions in subsection (1) remain in effect until the certificate of subdivision approval has been properly recorded pursuant to Title 70, chapter 21."
Section 20. Section 76-4-122, MCA, is amended to read:
"76-4-122. Filing or recording of noncomplying map or plat prohibited. (1) The county clerk and recorder shall
may not file or record any map or plat or certificate of survey showing a subdivision unless it complies with the provisions
of this part.
(2) A county clerk and recorder may not accept a subdivision plat or certificate of survey for filing until one of the following conditions has been met:
(a) for a subdivision outside a master planning area adopted pursuant to chapter 1, or outside a class 1 or class 2
municipality, the person wishing to file the plat has obtained approval of the local health officer having jurisdiction and has
filed the approval with the reviewing authority, and the reviewing authority department or a local program has indicated by
stamp or issued a certificate of subdivision approval indicating that it has approved the plat and plans and specifications
and that the subdivision is not subject to no sanitary restriction whenever reviewing authority approval is necessary; or
(b) whenever reviewing authority approval is not necessary, if the subdivision is within a master planning area adopted
pursuant to chapter 1, or within a class 1 or class 2 municipality:
(i) the person wishing to file the plat or certificate of survey has obtained a certificate from the governing body that the
subdivision is inside a master planning area or a class 1 or class 2 municipality and will be provided with adequate
municipal facilities for the supply of water and disposal of sewage and solid waste that storm water drainage will be
provided; or
(ii) the department or local program has approved the plans and specifications and that the subdivision is not subject to sanitary restriction."
Section 21. Section 76-4-123, MCA, is amended to read:
"76-4-123. Review and approval required outside master planning areas and class 1 and class 2 municipalities.
Outside master planning areas adopted pursuant to chapter 1 and class 1 and class 2 municipalities as provided in 76-4-124,
a person may not file a subdivision plat or certificate of survey with a county clerk and recorder, make disposition of a lot
within a subdivision, erect any facility for the supply of water or disposal of sewage or solid waste, erect a building or
shelter in a subdivision which requires facilities for the supply of water or disposal of sewage or solid waste, or occupy a
permanent building in a subdivision until the reviewing authority department or a local program has indicated that the
subdivision is not subject to no sanitary restriction."
Section 22. Section 76-4-124, MCA, is amended to read:
"76-4-124. Type of review and approval required within master planning areas and class 1 and class 2
municipalities. (1) Within master planning areas adopted pursuant to chapter 1 or within a class 1 or class 2 municipality
as defined in 7-1-4111, a subdivision, including a development of condominiums, is not subject to sanitary restrictions
when the local governing body certifies that adequate municipal facilities for the supply of water and disposal of sewage
and solid waste will be provided and storm water drainage is proper for the subdivision as provided in 76-4-127. In this
case, reviewing authority approval by the department or a local program is not necessary.
(2) To the extent that adequate municipal facilities for the supply of water or disposal of sewage or solid waste are not
to be provided for a subdivision or storm water drainage is not proper as certified to by the governing body, the person
wishing to subdivide must obtain reviewing authority approval from the department or a local program as provided in
76-4-122(2)(a)(b)(ii)."
Section 23. Section 76-4-125, MCA, is amended to read:
"76-4-125. Review of development plans, local board inspection -- land divisions excluded from review. (1) Plans
and specifications of a subdivision, as defined in this part, must be submitted to the reviewing authority department or a
local program, and the reviewing authority department or local program shall indicate by certificate of subdivision approval
that it has approved the plans and specifications and that the subdivision is not subject to a sanitary restriction. The plan
review by the reviewing authority department or a local program must be as follows:
(a) At any time after the developer has submitted an application under the Montana Subdivision and Platting Act, the
developer shall present to the reviewing authority department or a local program a preliminary plan of the proposed
development, whatever information the developer feels necessary for its subsequent review, and information required by
the reviewing authority department or a local program. If the preliminary plan for the proposed development includes
onsite sewage disposal facilities and the local board of health is not a local program, the developer, prior to presenting the
preliminary plan to the department or local program for review, shall notify the local board of health's designated agent,
who may conduct a site inspection to evaluate whether the site meets the standards adopted pursuant to 76-4-104(3).
(b) If a subdivision is excluded from review under chapter 3, but is subject to review under this chapter and the local board of health is not a local program, the developer, prior to submitting plans and specifications to the department or local program for review shall notify the local board of health's designated agent who may conduct a site evaluation to determine whether the site meets the standards adopted pursuant to 76-4-104(3).
(c) In order to facilitate the notification requirements in subsections (1)(a) and (1)(b), the subdivision review application for the department or any local program other than a local board of health, must include a certification that the developer has notified the local board of health's designated agent in accordance with this section.
(d) A local board of health's designated agent who has been notified of a proposed subdivision pursuant to subsection (1)(a) or (1)(b) may conduct a site evaluation of the proposed subdivision site prior to the submission of plans and specifications to the department or local program. The designated agent of a local board of health who conducts an inspection under this section may consult with the department or a local program and make recommendations regarding the installation of water supplies, storm drainage systems, and sewage disposal facilities.
(b)(e) The reviewing authority department or a local program shall give final action of the proposed plan within 60 days
after the submission of complete plans and specifications unless an environmental impact statement is required, at which
time this deadline may be increased to 120 days.
(2) A subdivision excluded from the provisions of chapter 3 must be submitted for review according to the provisions of this part, except that the following divisions or parcels, unless the exclusions are used to evade the provisions of this part, are not subject to review:
(a) the exclusions cited in 76-3-201 and 76-3-204;
(b) divisions made for the purpose of acquiring additional land to become part of an approved parcel, provided that a
dwelling or structure requiring water or sewage disposal facilities may not be erected on the additional acquired parcel and
that the division does not fall within a previously platted or approved subdivision;
(c) divisions made for purposes other than the construction of water supply or sewage and solid waste disposal facilities as the department specifies by rule; and
(d) subject to the provisions of subsection (3), a remainder of an original tract created by segregating a parcel from the tract for purposes of transfer, if:
(i) the remainder is served by a public or multifamily sewage system approved before January 1, 1997, pursuant to local regulations or this chapter; or
(ii) the remainder is 1 acre or larger and has an individual sewage system that was constructed prior to April 29, 1993, and, if required when installed, was approved pursuant to local regulations or this chapter.
(3) Consistent with the applicable provisions of 50-2-116(1)(i), a local health officer may require that, prior to the
transfer filing of a plat or certificate of survey of the parcel to be segregated from the remainder referenced in subsection
(2)(d)(ii), the remainder include acreage or features sufficient to accommodate a replacement drainfield."
Section 24. Section 76-4-126, MCA, is amended to read:
"76-4-126. Right to hearing. (1) (a) Upon denial of approval or conditional approval by a local program of subdivision
plans and specifications relating to environmental health facilities storm water drainage, water supplies, sewage disposal
systems, or solid waste disposal, the person who is aggrieved by such the denial or conditional approval may, within 30
days of the decision, request a hearing before the board or the reviewing authority local governing body. Within 30 days of
the hearing, the governing body shall approve, conditionally approve, or deny the subdivision plans and specifications.
(b) After the governing body hearing, the aggrieved person may request a hearing before the department by submitting a written request to the department for a hearing within 30 days after the governing body's decision. The written request must describe the activity and the stated basis for the local program's decision, include copies of all documents submitted to the local program in support of the subdivision plans and specifications, and specify the reasons for the appeal of the local program's final decision.
(c) Within 30 days after a hearing pursuant to subsection (1)(b), the department shall approve, conditionally approve, or deny the subdivision plans and specifications.
(d) A decision of the department pursuant to subsection (1)(c) is appealable to:
(i) the board within 30 days of the department's decision; and
(ii) a district court, as provided in Title 2, chapter 4, part 7.
(2) Upon denial, approval, or conditional approval by the department of subdivision plans and specifications relating to storm water drainage, water supplies, sewage disposal systems, or solid waste disposal, a person who is aggrieved by the denial or conditional approval may, within 30 days of the department decision, request a hearing before the board. A decision of the board pursuant to this subsection is appealable to the district court as provided in Title 2, chapter 4, part 7.
(3) After a hearing held pursuant to subsection (1) or (2), the board may either affirm or rescind the decision of the department or local program to deny or conditionally approve subdivision plans and specifications.
(4) Such All hearings will held pursuant to this section must be held pursuant to the Montana Administrative Procedure
Act."
Section 25. Section 76-4-127, MCA, is amended to read:
"76-4-127. Notice of certification that water and waste services adequate storm water drainage and municipal
facilities will be provided by local government. (1) When a subdivision is reviewed under the provisions of 76-4-124, the
local governing body shall, within 20 days after receiving preliminary plat approval under the Montana Subdivision and
Platting Act, send notice of certification to the reviewing authority department or local program that a subdivision has been
submitted for approval and that adequate storm water drainage and adequate municipal facilities for the supply of water and
disposal of sewage and solid waste will be provided for the subdivision.
(2) The notice of certification shall must include the following:
(a) the name and address of the applicant;
(b) a copy of the preliminary plat or a final plat where a preliminary plat is not necessary;
(c) the number of proposed parcels in the subdivision;
(d) a copy of any applicable zoning ordinances in effect;
(e) how construction of the sewage disposal and water supply systems or extensions will be financed;
(f) a copy of the master plan, when applicable, if one has not yet been submitted to the reviewing authority;
(g) the relative location of the subdivision to the city or town; and
(h) certification that adequate municipal facilities for the supply of water and disposal of sewage and solid waste are
available or will be provided within 1 year after the notice of certification is issued;
(i) if facilities for the supply of water or the disposal of sewage are not municipally owned, certification from the facility owners that adequate facilities are available and that the connection is authorized; and
(j) certification that the governing body has reviewed and approved plans to ensure adequate storm water drainage."
Section 26. Section 76-4-129, MCA, is amended to read:
"76-4-129. Joint application form and concurrent review. (1) Within 90 days after July 1, 1977 1999, the
department shall prepare and distribute a joint application form that can be used by an applicant to apply for approval of a
subdivision under the provisions of this part and the provisions of chapter 3. When an application is received by either the
department or a local program under this chapter or a local government under chapter 3, the department or local program or
local government is responsible for forwarding the appropriate parts of the application to the other entity.
(2) The review required by this part and the provisions of chapter 3 shall must occur concurrently."
Section 27. Section 76-4-130, MCA, is amended to read:
"76-4-130. Deviation from plans or specifications. A person may not construct or use a facility which that deviates
from the plans and specifications filed with the reviewing certificate of subdivision approval issued by the department or a
local program authority until the reviewing authority department or a local program has approved the deviation from the
certification of subdivision approval for any subdivision within the department's or local program's jurisdiction at the time a
request for deviation occurs. Any deviation approval under this part is subject to the inspection and monitoring provisions
of 76-4-107."
Section 28. Section 76-4-132, MCA, is amended to read:
"76-4-132. Special revenue account -- deposit and disbursement of lot fees. (1) All lot fees collected by the department under 76-4-105 must be deposited in an account in the state special revenue fund for implementation of the subdivision review program as provided in this part.
(2) Funds in the account established in subsection (1) may be used only to pay department costs of implementation of the subdivision review program as provided in this part.
(3) All lot fees collected by a local program under 76-4-105 must be deposited in an account in the county special revenue fund for the implementation of the subdivision review program, as provided in this part.
(4) Funds in the account established in subsection (3) may be used only to pay a local program's costs of implementation of the subdivision review program, as provided in this part."
Section 29. Section 76-4-135, MCA, is amended to read:
"76-4-135. State regulations no more stringent than federal Comparative stringency of regulations or guidelines.
(1) After April 14, 1995, except Except as provided in subsections (2) through (5) or unless required by state law, the
department may not adopt a rule to implement this chapter that is more stringent than the comparable federal regulations or
guidelines that address the same circumstances. The department may incorporate by reference comparable federal
regulations or guidelines. Except as provided in subsections (2) and (3), a local program may not adopt a regulation
pursuant to this part that is more stringent than the comparable department rule.
(2) The department or a local program may adopt a rule or regulation to implement this chapter that is more stringent than comparable federal regulations or guidelines or state rules only if the department makes a written finding after a public hearing and public comment and based on evidence in the record that:
(a) the proposed state standard or requirement or local regulation protects public health or the environment of the state; and
(b) the state standard or requirement or local regulation to be imposed can mitigate harm to the public health or environment and is achievable under current technology.
(3) The written finding must reference information and peer-reviewed scientific studies contained in the record that
forms the basis for the department's or the local program's conclusion. The written finding must also include information
from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed state
standard or requirement.
(4) (a) A person affected by a rule of the department adopted after January 1, 1990, and before April 14, 1995, that that person believes to be more stringent than comparable federal regulations or guidelines may petition the department to review the rule. If the department determines that the rule is more stringent than comparable federal regulations or guidelines, the department shall comply with this section by either revising the rule to conform to the federal regulations or guidelines or by making the written finding, as provided under subsection (2), within a reasonable period of time, not to exceed 12 months after receiving the petition. A petition under this section does not relieve the petitioner of the duty to comply with the challenged rule. The department may charge a petition filing fee in an amount not to exceed $250.
(b) A person may also petition the department for a rule review under subsection (4)(a) if the department adopts a rule after January 1, 1990, in an area in which no federal regulations or guidelines existed and the federal government subsequently establishes comparable regulations or guidelines that are less stringent than the previously adopted department rule.
(5) This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1)."
NEW SECTION. Section 30. Repealer. Section 76-4-128, MCA, is repealed.
NEW SECTION. Section 31. Codification instruction. (1) [Sections 2 through 4 and 6] are intended to be codified as an integral part of Title 76, chapter 4, part 1, and the provisions of Title 76, chapter 4, part 1, apply to [sections 2 through 4 and 6].
(2) [Section 5] is intended to be codified as an integral part of Title 2, chapter 15, part 21, and the provisions of Title 2, chapter 15, part 21, apply to [section 5].
NEW SECTION. Section 32. Applicability -- retroactive applicability. (1) Except as provided in subsection (2), [this act] applies to divisions of land that are proposed as subdivisions after [the effective date of this act].
(2) [Section 16(2)] applies to all subdivisions approved under Title 76, chapter 4, part 1, since 1961, by the state board of health, department of health and environmental sciences, or the department of environmental quality.
- END -
Latest Version of HB 666 (HB0666.01)
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