Bill Summary – FastDemocracy

67th Legislature                                                                                                       SB 165.1
                                                    SENATE BILL NO. 165
   INTRODUCED BY C. GLIMM, M. BLASDEL, B. BROWN, M. CUFFE, J. ELLSWORTH, J. ESP, T. GAUTHIER,
       T. MANZELLA, R. OSMUNDSON, K. REGIER, C. SMITH, P. FIELDER, J. FULLER, S. GALLOWAY, J.
              KASSMIER, B. MITCHELL, M. NOLAND, L. SHELDON-GALLOWAY, D. SKEES, B. TSCHIDA
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   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO SUBDIVISION
   SANITATION REVIEW; LIMITING THE REGULATION OF INDIVIDUAL SEWAGE FACILITY IMPACTS TO
   SURFACE WATER TO A DISTANCE OF 500 FEET OR LESS AWAY FROM STATE SURFACE WATERS;
   REVISING SUBDIVISION EXEMPTIONS; AND AMENDING SECTIONS 76-3-504, 76-3-622, 76-4-102, 76-4-
   104, 76-4-108, 76-4-115, AND 76-4-125, MCA.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              Section 1. Section 76-3-504, MCA, is amended to read:
              "76-3-504.    Subdivision regulations -- contents. (1) The subdivision regulations adopted under this
   chapter must, at a minimum:
              (a)   list the materials that must be included in a subdivision application in order for the application to be
   determined to contain the required elements for the purposes of the review required in 76-3-604(1);
              (b)   except as provided in 76-3-509, 76-3-609, or 76-3-616, require the subdivider to submit to the
   governing body an environmental assessment as prescribed in 76-3-603;
              (c)   establish procedures consistent with this chapter for the submission and review of subdivision
   applications and amended applications;
              (d)   prescribe the form and contents of preliminary plats and the documents to accompany final plats;
              (e)   provide for the identification of areas that, because of natural or human-caused hazards, are
   unsuitable for subdivision development. The regulations must prohibit subdivisions in these areas unless the
   hazards can be eliminated or overcome by approved construction techniques or other mitigation measures
   authorized under 76-3-608(4) and (5). Approved construction techniques or other mitigation measures may not
   include building regulations as defined in 50-60-101 other than those identified by the department of labor and
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   industry as provided in 50-60-901.
              (f)   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;
              (g)   prescribe standards for:
              (i)   the design and arrangement of lots, streets, and roads;
              (ii) grading and drainage;
              (iii) subject to the provisions of 76-3-511, water supply and sewage and solid waste disposal that meet
   the:
              (A)    regulations adopted by the department of environmental quality board of environmental review
   under 76-4-104 for subdivisions that will create one or more parcels containing less than 20 acres; and
              (B)    standards provided in 76-3-604 and 76-3-622 for subdivisions that will create one or more parcels
   containing 20 acres or more and less than 160 acres; and
              (iv) the location and installation of public utilities;
              (h)   provide procedures for the administration of the park and open-space requirements of this
   chapter;
              (i)   provide for the review of subdivision applications by affected public utilities and those agencies of
   local, state, and federal government identified during the preapplication consultation conducted pursuant to
   subsection (1)(q) or those having a substantial interest in a proposed subdivision. A public utility or agency
   review may not delay the governing body's action on the application beyond the time limits specified in this
   chapter, and the failure of any agency to complete a review of an application may not be a basis for rejection of
   the application by the governing body.
              (j)   when a subdivision creates parcels with lot sizes averaging less than 5 acres, require the
   subdivider to:
              (i)   reserve all or a portion of the appropriation water rights owned by the owner of the land to be
   subdivided and transfer the water rights to a single entity for use by landowners within the subdivision who have
   a legal right to the water and reserve and sever any remaining surface water rights from the land;
              (ii) if the land to be subdivided is subject to a contract or interest in a public or private entity formed to
   provide the use of a water right on the subdivision lots, establish a landowner's water use agreement
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   administered through a single entity that specifies administration and the rights and responsibilities of
   landowners within the subdivision who have a legal right and access to the water; or
              (iii) reserve and sever all surface water rights from the land;
              (k)   (i) except as provided in subsection (1)(k)(ii), require the subdivider to establish ditch easements
   in the subdivision that:
              (A)    are in locations of appropriate topographic characteristics and sufficient width to allow the physical
   placement and unobstructed maintenance of open ditches or belowground pipelines for the delivery of water for
   irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an
   irrigation district or other private or public entity formed to provide for the use of the water right on the
   subdivision lots;
              (B)    are a sufficient distance from the centerline of the ditch to allow for construction, repair,
   maintenance, and inspection of the ditch; and
              (C)    prohibit the placement of structures or the planting of vegetation other than grass within the ditch
   easement without the written permission of the ditch owner.
              (ii) Establishment of easements pursuant to this subsection (1)(k) is not required if:
              (A)    the average lot size is 1 acre or less and the subdivider provides for disclosure, in a manner
   acceptable to the governing body, that adequately notifies potential buyers of lots that are classified as irrigated
   land and may continue to be assessed for irrigation water delivery even though the water may not be
   deliverable; or
              (B)    the water rights are removed or the process has been initiated to remove the water rights from the
   subdivided land through an appropriate legal or administrative process and if the removal or intended removal
   is denoted on the preliminary plat. If removal of water rights is not complete upon filing of the final plat, the
   subdivider shall provide written notification to prospective buyers of the intent to remove the water right and
   shall document that intent, when applicable, in agreements and legal documents for related sales transactions.
              (l)   require the subdivider, unless otherwise provided for under separate written agreement or filed
   easement, to file and record ditch easements for unobstructed use and maintenance of existing water delivery
   ditches, pipelines, and facilities in the subdivision that are necessary to convey water through the subdivision to
   lands adjacent to or beyond the subdivision boundaries in quantities and in a manner that are consistent with
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   historic and legal rights;
              (m)    require the subdivider to describe, dimension, and show public utility easements in the
   subdivision on the final plat in their true and correct location. The public utility easements must be of sufficient
   width to allow the physical placement and unobstructed maintenance of public utility facilities for the provision of
   public utility services within the subdivision.
              (n)   establish whether the governing body, its authorized agent or agency, or both will hold public
   hearings;
              (o)   establish procedures describing how the governing body or its agent or agency will address
   information presented at the hearing or hearings held pursuant to 76-3-605 and 76-3-615;
              (p)   establish criteria that the governing body or reviewing authority will use to determine whether a
   proposed method of disposition using the exemptions provided in 76-3-201 or 76-3-207 is an attempt to evade
   the requirements of this chapter. The regulations must provide for an appeals process to the governing body if
   the reviewing authority is not the governing body.
              (q)   establish a preapplication process that:
              (i)   requires a subdivider to meet with the authorized agent or agency, other than the governing body,
   that is designated by the governing body to review subdivision applications prior to the subdivider submitting
   the application;
              (ii) requires, for informational purposes only, identification of the state laws, local regulations, and
   growth policy provisions, if a growth policy has been adopted, that may apply to the subdivision review process;
              (iii) requires a list to be made available to the subdivider of the public utilities, those agencies of local,
   state, and federal government, and any other entities that may be contacted for comment on the subdivision
   application and the timeframes that the public utilities, agencies, and other entities are given to respond. If,
   during the review of the application, the agent or agency designated by the governing body contacts a public
   utility, agency, or other entity that was not included on the list originally made available to the subdivider, the
   agent or agency shall notify the subdivider of the contact and the timeframe for response.
              (iv) requires that a preapplication meeting take place no more than 30 days from the date that the
   authorized agent or agency receives a written request for a preapplication meeting from the subdivider; and
              (v)   establishes a time limit after a preapplication meeting by which an application must be submitted;
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              (r)   require that the written decision required by 76-3-620 must be provided to the applicant within 30
   working days following a decision by the governing body to approve, conditionally approve, or deny a
   subdivision;
              (s)   establish criteria for reviewing an area, regardless of its size, that provides or will provide multiple
   spaces for recreational camping vehicles or mobile homes.
              (2)   In order to accomplish the purposes described in 76-3-501, the subdivision regulations adopted
   under 76-3-509 and this section may include provisions that are consistent with this section that promote cluster
   development."
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              Section 2. Section 76-3-622, MCA, is amended to read:
              "76-3-622.     Water and sanitation information to accompany preliminary plat. (1) Except as
   provided in subsection (2), the subdivider shall submit to the governing body or to the agent or agency
   designated by the governing body the information listed in this section for proposed subdivisions that will
   include new water supply or wastewater facilities. The information must include:
              (a)   a vicinity map or plan that shows:
              (i)   the location, within 100 feet outside of the exterior property line of the subdivision and on the
   proposed lots, of:
              (A)    flood plains;
              (B)    surface water features;
              (C)    springs;
              (D)    irrigation ditches;
              (E)    existing, previously approved, and, for parcels less than 20 acres, proposed water wells and
   wastewater treatment systems;
              (F)   for parcels less than 20 acres, mixing zones identified as provided in subsection (1)(g); and
              (G)    the representative drainfield site used for the soil profile description as required under subsection
   (1)(d); and
              (ii) the location, within 500 feet outside of the exterior property line of the subdivision, of public water
   and sewer facilities;
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              (b)   a description of the proposed subdivision's water supply systems, storm water systems, solid
   waste disposal systems, and wastewater treatment systems, including:
              (i)   whether the water supply and wastewater treatment systems are individual, shared, multiple user,
   or public as those systems are defined in rules published by the department of environmental quality; and
              (ii) if the water supply and wastewater treatment systems are shared, multiple user, or public, a
   statement of whether the systems will be public utilities as defined in 69-3-101 and subject to the jurisdiction of
   the public service commission or exempt from public service commission jurisdiction and, if exempt, an
   explanation for the exemption;
              (c)   a drawing of the conceptual lot layout at a scale no smaller than 1 inch equal to 200 feet that
   shows all information required for a lot layout document in rules adopted by the department of environmental
   quality board of environmental review pursuant to 76-4-104;
              (d)   evidence of suitability for new onsite wastewater treatment systems that, at a minimum, includes:
              (i)   a soil profile description from a representative drainfield site identified on the vicinity map, as
   provided in subsection (1)(a)(i)(G), that complies with standards published by the department of environmental
   quality;
              (ii) demonstration that the soil profile contains a minimum of 4 feet of vertical separation distance
   between the bottom of the permeable surface of the proposed wastewater treatment system and a limiting
   layer; and
              (iii) in cases in which the soil profile or other information indicates that ground water is within 7 feet of
   the natural ground surface, evidence that the ground water will not exceed the minimum vertical separation
   distance provided in subsection (1)(d)(ii);
              (e)   for new water supply systems, unless cisterns are proposed, evidence of adequate water
   availability:
              (i)   obtained from well logs or testing of onsite or nearby wells;
              (ii) obtained from information contained in published hydrogeological reports; or
              (iii) as otherwise specified by rules adopted by the department of environmental quality board of
   environmental review pursuant to 76-4-104;
              (f)   evidence of sufficient water quality in accordance with rules adopted by the department of
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   environmental quality board of environmental review pursuant to 76-4-104;
              (g)   a preliminary analysis of potential impacts to ground water quality from new wastewater treatment
   systems, using as guidance rules adopted by the board of environmental review pursuant to 75-5-301 and 75-
   5-303 related to standard mixing zones for ground water, source specific mixing zones, and nonsignificant
   changes in water quality. The preliminary analysis may be based on currently available information and must
   consider the effects of overlapping mixing zones from proposed and existing wastewater treatment systems
   within and directly adjacent to the subdivision. Instead of performing the preliminary analysis required under this
   subsection (1)(g), the subdivider may perform a complete nondegradation analysis in the same manner as is
   required for an application that is reviewed under Title 76, chapter 4.
              (2)   A subdivider whose land division is excluded from review under 76-4-125(1) or whose facilities are
   excluded from review under 76-4-125(3) is not required to submit the information required in this section.
              (3)   A governing body may not, through adoption of regulations, require water and sanitation
   information in addition to the information required under this section unless the governing body complies with
   the procedures provided in 76-3-511."
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