Bill Summary – FastDemocracy

67th Legislature
                                                                                                                  SB 44.1
                                                SENATE BILL NO. 44
                                              INTRODUCED BY J. ESP
                     BY REQUEST OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY
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 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO SUBDIVISION
 SANITATION REVIEW; PROVIDING DEFINITIONS; EXTENDING RULEMAKING AUTHORITY; ALLOWING
 LOCAL ENTITIES TO ESTABLISH FEES FOR SUBDIVISION AND SUBDIVISION EXEMPTION REVIEW;
 REVISING SUBDIVISION EXEMPTIONS; REQUIRING NOTIFICATION TO PURCHASERS FOR CERTAIN
 UNREVIEWED LOTS; AND AMENDING SECTIONS 76-4-102, 76-4-103, 76-4-104, 76-4-105, 76-4-111, 76-4-
 113, 76-4-121, 76-4-122, 76-4-125, 76-4-127, 76-4-129, 76-4-130, AND 76-4-131, MCA.”
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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).
          (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.
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         (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 water, or disposal of sewage or solid
 waste, or storm water drainage, and any pipes, conduits, or other stationary method by which water, sewage,
 storm water, or solid wastes might be transported or distributed.
         (9)   "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) "Mixing zone" has the meaning provided in 75-5-103.
         (11) (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) (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) "Public sewage system" or "public sewage disposal system" means a public sewage system as
 defined in 75-6-102.
         (14) "Public water supply system" has the meaning provided in 75-6-102.
         (15) "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.
         (15)(16) "Registered professional engineer" means a person licensed to practice as a professional
 engineer under Title 37, chapter 67.
         (16)(17) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37,
 chapter 40.
         (17)(18) "Reviewing authority" means the department or a local department or board of health certified
 to conduct a review under 76-4-104.
         (18)(19) "Sanitary restriction" means a prohibition against the erection of any dwelling, shelter, or
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 building requiring facilities for the supply of water, or the disposition of sewage, storm water, or solid waste or
 the construction of water supply, or sewage or solid waste disposal, or storm water drainage facilities until the
 department has approved plans for those facilities.
         (19)(20) "Sewage" has the meaning provided in 75-5-103.
         (20)(21) "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.
         (21)(22) "Solid waste" has the meaning provided in 75-10-103.
         (22)(23) "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 area parcel, regardless of size, that provides two or more permanent multiple
 space spaces for recreational camping vehicles or mobile homes.
         (23)(24) "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.
         (24)(25) "Well isolation zone" means the area within a 100-foot radius of a water well."
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         Section 2. Section 76-4-103, MCA, is amended to read:
         "76-4-103. What constitutes subdivision. A subdivision consists of only those parcels of less than
 20 acres that have been created by a division of land, and the The plat for a subdivision must show all of the
 parcels, whether contiguous or not. A parcel that is more than 20 acres in size, exclusive of public roadways, is
 not subject to review under this part, unless the parcel provides two or more permanent spaces for recreational
 camping vehicles or mobile homes. The rental or lease of one or more parts of a single building, structure, or
 other improvement, whether existing or proposed, is not a subdivision, as that term is defined in this part, and is
 not subject to the requirements of this part."
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         Section 3. 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
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 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:
         (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 board of health 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
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 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:
              (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 dwelling living and commercial units and structures requiring facilities for
 water supply, or sewage disposal, or storm water drainage;
              (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
 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 mixing zone or a proposed well isolation zone for an individual water system well that
 is a minimum of 50 feet inside the proposed subdivision boundary may extend outside the boundaries of the
 proposed subdivision onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or
 utilities.
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         (ii) This subsection (6)(i) does not apply to the divisions provided for in 76-3-207 except those 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 apply to all
 subdivisions and divisions created after March 30, 2011, except as provided in subsections (6)(i)(i) and (6)(i)(ii).
 The requirements of subsection (6)(i) regarding proposed well isolation zones apply to all subdivisions and
 divisions created after October 1, 2013, except as provided in subsections (6)(i)(i) and (6)(i)(ii). 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 [the effective date of
 this act], except as provided in subsections (6)(i)(i) and (6)(i)(ii).
         (7)(8) 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.
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 In the absence of specific requirements, minimum standards necessary to protect public health and water
 quality apply.
         (8)(9)   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.
         (9)(10) 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."
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         Section 4. Section 76-4-105, MCA, is amended to read:
         "76-4-105. Subdivision fees -- subdivision program funding. (1) The department shall adopt rules
 setting forth fees that do not exceed actual costs for reviewing plats and subdivisions, conducting inspections
 pursuant to 76-4-107, and conducting enforcement activities pursuant to 76-4-108. The rules must provide for a
 schedule of fees to be paid by the applicant to the department. The fees must be used for review of plats and
 subdivisions, conducting inspections pursuant to 76-4-107, and conducting enforcement activities pursuant to
 76-4-108. The fees must be 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 develop