Montana Administrative Register Notice 17-341 No. 4   02/28/2013    
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In the matter of the amendment of ARM 17.36.340 and 17.36.605 pertaining to lot sizes:  exemptions and exclusions










            TO:  All Concerned Persons


            1.  On November 23, 2012, the Department of Environmental Quality published MAR Notice No. 17-341 regarding a notice of public hearing on the proposed amendment of the above-stated rules at page 2299, 2012 Montana Administrative Register, issue number 22.


            2.  The department has amended ARM 17.36.340 exactly as proposed and has amended ARM 17.36.605 as proposed, but with the following changes, new matter underlined, stricken matter interlined:


            17.36.605  EXCLUSIONS  (1) remains as proposed.

            (2)  The reviewing authority may exclude the following parcels created by divisions of land from review under Title 76, chapter 4, part 1, MCA, unless the exclusion is used to evade the provisions of that part:

            (a) through (b)(ii) remain as proposed.

            (c)  a parcel that has facilities for water supply, wastewater disposal, storm drainage, or solid waste disposal that were not subject to review, and have not been reviewed, under Title 76, chapter 4, part 1, MCA, if:

            (i) remains as proposed.

            (ii)  the number of developed parcels is not increased;

            (ii) remains as proposed, but is renumbered (iii).

            (iii) (iv)  the local health officer determines that existing facilities are adequate for the proposed existing use.  As a condition of the exemption, the local health officer may require evidence that:

            (A) through (3) remain as proposed.


            3.  The following comments were received and appear with the department's responses:


            COMMENT NO. 1:  Proposed ARM 17.36.605(2)(c)(ii) should include a date referencing when counties were required to adopt septic permitting procedures.

            RESPONSE:  Proposed ARM 17.36.605(2)(c)(ii) is an exemption from Sanitation in Subdivisions Act review.  This authority does not extend to septic permits administered by the county under Title 50, MCA.  The Department of Environmental Quality (department), through its rulemaking authority, does not have the ability to regulate counties and their permitting process.

            COMMENT NO. 2:  The department should review all Sanitation in Subdivisions Act exemptions.

            RESPONSE:  The requirements for Sanitation in Subdivisions Act exemptions are set forth in Title 76, chapter 4, MCA.  The determination as to whether an exemption applies is made by the local planner, local health officer, and/or registered land surveyor filing the plat or certificate of survey with the county clerk and recorder.  If the qualified individuals determine that a Sanitation in Subdivisions Act exemption applies, then Sanitation in Subdivisions Act review is not necessary.  Given the number of plats and surveys to which exemptions apply, the department must rely on the competence and professionalism of these individuals to properly apply the Sanitation in Subdivisions Act.


            COMMENT NO. 3:  What is considered a storm drainage facility under the proposed amendment to ARM 17.36.605(2)(a)?

            RESPONSE:  Section 76-4-102(6), MCA, defines facilities as "… any pipes, conduits, or other stationary method by which water, sewage, or solid wastes might be transported or distributed."  For the purposes of the proposed amendment to ARM 17.36.605(2)(a), this would include those facilities governed by this statute and may include, but not be limited to, those facilities addressed in ARM 17.36.310 and Department Circular DEQ-8.


            COMMENT NO. 4:  The proposed addition of "storm drainage" to ARM 17.36.605(2)(a) makes the number of sites requiring review excessive.

            RESPONSE:  Section 76-4-104, MCA, of the Sanitation in Subdivisions Act requires the department to adopt rules and standards for the review of water supplies, sewage disposal facilities, storm water drainage ways and solid waste disposal.  The rules and standards adopted by the department pursuant to 76-4-104, MCA, are set forth in ARM Title 17, chapter 36.  ARM 17.36.605 identifies certain parcels created by divisions of land that are excluded from Sanitation in Subdivisions Act review.  To meet the intent of the statute, any exemption from that review should also include storm drainage facilities.


            COMMENT NO. 5:  The word "and" should be added to the provisions of proposed ARM 17.36.605(2)(c)(i), (ii), and (iii).

            RESPONSE:  Common rules of grammar, as well as rules of statutory construction, interpret a list of requirements conjoined with the word "and" at the end to be inclusive.  As applied to proposed ARM 17.36.605(2)(c)(iii), the requirements of (i), (ii), and (iii) all need to be met to qualify for the exemption.


            COMMENT NO. 6:  Proposed ARM 17.36.605(2)(c) has no minimum lot size required.  This could result in the exemption of a lot that does not meet the requirements of ARM 17.36.340.

            RESPONSE:  Proposed ARM 17.36.605(2)(c) requires that the local health officer determine that the existing facilities are adequate for the proposed use.  The health officer's determination should include an evaluation of the lot size to ensure the existing systems for water, wastewater, solid waste, and storm water on the reconfigured lot are not a threat to public health.

            COMMENT NO. 7:  Proposed ARM 17.36.605(2)(c) does not address the need for easements or shared user agreements.

            RESPONSE:  The intended scope of proposed ARM 17.36.605(2)(c) is limited to parcels affected by boundary line adjustments where no Sanitation in Subdivisions Act issues exist.  It is not intended to include the creation of new parcels through division and, as such, does not extend to address easements/shared user agreements.  The proposed rule has been amended as shown above to clarify this intent and better reflect the statement of reasonable necessity.


            COMMENT NO. 8:  What does "adequate for the proposed use" mean in proposed ARM 17.36.605(2)(c)?

            RESPONSE:  Proposed ARM 17.36.605(2)(c) applies only to boundary line adjustments to lots with existing facilities that serve an existing development.  The existing facilities had to meet all local and state regulations in effect at the time they were installed.  For clarification purposes, the department has amended ARM 17.36.605(2)(c) as shown above in response to the comment.


            COMMENT NO. 9:  Proposed ARM 17.36.605(2)(c) requires the local health officer to certify that the water, wastewater, storm water, and solid waste are adequate.  This is a function of review and local officials do not have time to spend on this activity without adequate compensation.

            RESPONSE:  Proposed ARM 17.36.605(2)(c) does not require the local health officer to certify the adequacy of water, wastewater, storm water, and solid waste for the proposed exempt lot.  The local health officer has the discretion to either approve the use of this exemption, disapprove it, or refuse to make the determination.  If the local health officer disapproves or refuses to make the determination, the lot must be reviewed pursuant to the Sanitation in Subdivisions Act.


            COMMENT NO. 10:  Proposed ARM 17.36.605(2)(c) does not create a lot layout or ensure that the location of a future replacement drainfield will be preserved.

            RESPONSE:  Proposed ARM 17.36.605(2)(c) requires that the existing facilities comply with state and local laws and regulations, including permit requirements which were applicable at the time of installation.  Information regarding replacement areas for a drainfield should be included in the permit if available.  If the health officer feels that the boundary line relocation could compromise an area for replacement, the health officer may deny the use of this exemption and require review pursuant to the Sanitation in Subdivisions Act in Title 76, chapter 4, MCA.


            COMMENT NO. 11:  It is unclear why ARM 17.36.605(2)(c) is being proposed.

            RESPONSE:  Proposed ARM 17.36.605(2)(c) modifies the current exclusion in ARM 17.36.605(2)(b) for "previously exempt" parcels.  The effect of the amendment will be to expand the exclusion to parcels for which the original basis for exemption no longer applies (e.g., grandfathered parcels), but where no Sanitation in Subdivisions Act review is necessary.  The proposed amendments are necessary to eliminate review of parcels where no Sanitation in Subdivisions Act issues exist.


            COMMENT NO. 12:  There seems to be a view that Sanitation in Subdivisions Act review should be avoided.

            RESPONSE:  The exemptions listed are intended to address those lots that meet the definition of a subdivision under 76-4-103, MCA, but do not benefit from a formal review of facilities for water, wastewater, storm water, or solid waste.


            COMMENT NO. 13:  One comment was received in support of the proposed amendments to ARM 17.36.340(1)(b)(i), ARM 17.36.605(1), (2)(a), (2)(b)(i) and (ii), and ARM 17.36.605(3) regarding Sanitation and Subdivision Act review.

            RESPONSE:  The department acknowledges the comment.


Reviewed by:                                     DEPARTMENT OF ENVIRONMENTAL





/s/ John F. North                                   By:  /s/ Tracy Stone-Manning                            

JOHN F. NORTH                                           TRACY STONE-MANNING, DIRECTOR

Rule Reviewer


            Certified to the Secretary of State, February 19, 2013.


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