Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                             HB 364.1
                                                HOUSE BILL NO. 364
    INTRODUCED BY C. KNUDSEN, D. BEDEY, K. ZOLNIKOV, S. ESSMANN, B. MITCHELL, S. VINTON, M.
      BERTOGLIO, L. BREWSTER, J. HINKLE, N. NICOL, B. LER, K. SEEKINS-CROWE, R. MARSHALL, E.
     BUTTREY, C. HINKLE, R. FITZGERALD, M. HOPKINS, J. BERGSTROM, M. YAKAWICH, P. GREEN, R.
                                          MINER, T. SMITH, R. KNUDSEN
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING THE SANITATION IN SUBDIVISIONS ACT
  APPLICATION REVIEW PROCESS; ALLOWING AN INDEPENDENT REVIEWER TO CONDUCT
  SUBDIVISION REVIEWS UNDER CERTAIN CIRCUMSTANCES; DETERMINING TRIGGERS FOR
  INDEPENDENT REVIEWS; REQUIRING REPORTING TO THE ENVIRONMENTAL QUALITY COUNCIL;
  REVISING REPORTING REQUIREMENTS; PROVIDING RULEMAKING AUTHORITY; PROVIDING
  DEFINITIONS; AMENDING SECTIONS 76-4-102, 76-4-104, 76-4-114, 76-4-115, AND 76-4-116, MCA; AND
  PROVIDING AN APPLICABILITY DATE AND A TERMINATION DATE.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          Section 1. 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 definitions apply:
          (1)      "Adequate county water and/or sewer district facilities" means facilities provided by a county
  water and/or sewer district incorporated under Title 7, chapter 13, that operate in compliance with Title 75,
  chapters 5 and 6.
          (2)      "Adequate municipal facilities" means municipally, publicly, or privately owned facilities that
  supply water, treat sewage, or dispose of solid waste for all or most properties within the boundaries of a
  municipality and that are operating in compliance with Title 75, chapters 5 and 6.
          (3)      "Board" means the board of environmental review.
          (4)      "Certifying authority" means a municipality or a county water and/or sewer district that meets
  the eligibility requirements established by the department under 76-4-104(6).
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68th Legislature 2023                                                                                             HB 364.1
          (5)      "Department" means the department of environmental quality.
          (6)      "Extension of a public sewage system" means a sewerline that connects two or more sewer
  service lines to a sewer main.
          (7)      "Extension of a public water supply system" means a waterline that connects two or more water
  service lines to a water main.
          (8)      "Facilities" means public or private facilities for the supply of wateror 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.
          (9)      "Independent reviewer" means a registered sanitarian or registered professional engineer that
  the department has certified to conduct a review under 76-4-104.
          (9)(10) "Individual water system" means any water system that serves one living unit or commercial
  unit and that is not a public water supply system as defined in 75-6-102.
          (10)(11) "Mixing zone" has the meaning provided in 75-5-103.
          (11)(12) (a) "Proposed drainfield mixing zone" means a mixing zone submitted for approval under this
  chapter after March 30, 2011.
          (b)      The term does not include drainfield mixing zones that existed or were approved under this
  chapter prior to March 30, 2011.
          (12)(13) (a) "Proposed well isolation zone" means a well isolation zone submitted for approval under
  this chapter after October 1, 2013.
          (b)      The term does not include well isolation zones that existed or were approved under this
  chapter prior to October 1, 2013.
          (13)(14) "Public sewage system" or "public sewage disposal system" means a public sewage system
  as defined in 75-6-102.
          (14)(15) "Public water supply system" has the meaning provided in 75-6-102.
          (15)(16) "Regional authority" means any regional water authority, regional wastewater authority, or
  regional water and wastewater authority organized pursuant to the provisions of Title 75, chapter 6, part 3.
          (16)(17) "Registered professional engineer" means a person licensed to practice as a professional
  engineer under Title 37, chapter 67.
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68th Legislature 2023                                                                                             HB 364.1
            (17)(18) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37,
  chapter 40.
            (18)(19) "Reviewing authority" means the department or a local department or board of health certified
  to conduct a review under 76-4-104.
            (19)(20) "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 has approved plans for those
  facilities.
            (20)(21) "Sewage" has the meaning provided in 75-5-103.
            (21)(22) "Sewer service line" means a sewerline that connects a single building or living unit to a public
  sewage system or to an extension of a public sewage system.
            (22)(23) "Solid waste" has the meaning provided in 75-10-103.
            (23)(24) "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, any condominium,
  townhome, or townhouse, or any parcel, regardless of size, that provides two or more permanent spaces for
  recreational camping vehicles or mobile homes.
            (24)(25) "Water service line" means a waterline that connects a single building or living unit to a public
  water supply system or to an extension of a public water supply system.
            (25)(26) "Well isolation zone" means the area within a 100-foot radius of a water well."
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            Section 2. Section 76-4-104, MCA, is amended to read:
            "76-4-104.   Rules for administration and enforcement. (1) The department 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 must provide the basis for approving subdivisions for various types of
  public and private water supplies, sewage disposal facilities, storm water drainage ways, and solid waste
  disposal. The rules and standards must be related to:
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68th Legislature 2023                                                                                               HB 364.1
          (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)       (a) Except as provided in subsection (3)(b), the rules must provide for the review of
  subdivisions consistent with 76-4-114 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
  conduct the review.
          (b)       (i) Except as provided in 75-6-121 and subsection (3)(b)(ii) of this section, a local department or
  board of health may not review public water supply systems, public sewage systems, or extensions of or
  connections to these systems.
          (ii)      A local department or board of health may be certified by the department to review subdivisions
  proposed to connect to existing municipal or county water and/or sewer district 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 local board of health, or independent reviewer is competent to
  review the subdivisions as described in subsection (3).
          (5)       The department shall review those subdivisions described in subsection (3) if:
          (a)       a proposed subdivision 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)       The rules must further provide for:
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68th Legislature 2023                                                                                               HB 364.1
          (a)      providing the reviewing authority with a copy of the plat or certificate of survey subject to review
  under this part and other documentation showing the layout or plan of development, including:
          (i)      total development area; and
          (ii)     total number of proposed 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, except that the rules must provide a basis for not requiring storm water
  review under this part for parcels 5 acres and larger on which the total impervious area does not and will not
  exceed 5%. Nothing in this section relieves any person of the duty to comply with the requirements of Title 75,
  chapter 5, or rules adopted pursuant to Title 75, chapter 5.
          (f)      standards and technical procedures applicable to sanitary sewer plans and designs, including
  soil testing and site design standards for on-lot 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)      adequate evidence that a proposed drainfield mixing zone and a proposed well isolation zone
  are located wholly within the boundaries of the proposed subdivision where the proposed drainfield or well is
  located or that an easement or, for public land, other authorization has been obtained from the landowner to
  place the proposed drainfield mixing zone or proposed well isolation zone outside the boundaries of the
  proposed subdivision where the proposed drainfield or proposed well is located.
          (i)      A proposed drainfield mixing zone or a proposed well isolation zone for an individual water
  system well that is a minimum of 50 feet inside the subdivision boundary may extend outside the boundaries of
  the subdivision onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities.
          (ii)     This subsection (6)(i) does not apply to the divisions provided for in 76-3-207 except those
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68th Legislature 2023                                                                                             HB 364.1
  under 76-3-207(1)(b). Nothing in this section is intended to prohibit the extension, construction, or
  reconstruction of or other improvements to a public sewage system within a well isolation zone that extends
  onto land that is dedicated for use as a right-of-way for roads, railroads, or utilities.
            (j)    criteria for granting waivers and deviations from the standards and technical procedures
  adopted under subsections (6)(e) through (6)(i);
            (k)    evidence to establish that, if a public water supply system or a public sewage system is
  proposed, provision has been made for the system and, if other methods of water supply or sewage disposal
  are proposed, evidence that the systems will comply with state and local laws and regulations that are in effect
  at the time of submission of the subdivision application under this chapter. Evidence that the systems will
  comply with local laws and regulations must be in the form of a certification from the local health department as
  provided by department rule.
            (l)    evidence to demonstrate that appropriate easements, covenants, agreements, and
  management entities have been established to ensure the protection of human health and state waters and to
  ensure the long-term operation and maintenance of water supply, storm water drainage, and sewage disposal
  facilities;
            (m)    eligibility requirements for municipalities and county water and/or sewer districts to qualify as a
  certifying authority under the provisions of 76-4-127.
            (7)    The requirements of subsection (6)(i) regarding proposed drainfield mixing zones and proposed
  well isolation zones apply to all subdivisions or divisions excluded from review under 76-4-125 created after
  October 1, 2021, except as provided in subsections (6)(i)(i) and (6)(i)(ii).
            (8)    The department shall:
            (a)    conduct a biennial review of experimental wastewater system components that have been
  granted a waiver or deviation as provided in subsection (6)(j);
            (b)    utilize relevant analysis of wastewater system components approved in other states and data
  from peer-reviewed third-party studies to conduct the review provided in subsection (8)(a);
            (c)    propose those experimental wastewater system components that meet the purposes and
  provisions of this part for adoption into the rules pursuant to this section; and
            (d)    report to the local government interim committee biennially, in accordance with 5-11-210, the
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68th Legislature 2023                                                                                               HB 364.1
  number and type of experimental wastewater system components reviewed and the number and type of system
  components approved and provide written findings to explain why a system component was reviewed but not
  approved.
          (9)      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 when a complete application is submitted
  to the reviewing authority, 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.
          (10)     The reviewing authority may not deny or condition a certificate of subdivision approval under
  this part unless it provides a written statement to the applicant detailing the circumstances of the 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.
          (11)     The department may adopt rules that provide technical details and clarification regarding the
  water and sanitation information required to be submitted under 76-3-622.
          (12)     (a) Except as provided in subsection (12)(b) and pursuant to subsection (12)(c), the rules must
  provide for the review of subdivisions consistent with 76-4-114 by an independent reviewer if the department
  certifies under subsection (4) of this section that the independent reviewer is competent to conduct the review.
          (b)      (i) Except as provided in subsection (12)(b)(ii), an independent reviewer may not review public