Montana Administrative Register Notice 8-2-197 No. 5   03/11/2022    
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In the matter of the amendment of ARM 8.2.328 pertaining to actions that qualify as categorical exclusions under the Montana Environmental Policy Act







TO: All Concerned Persons


            1. On March 31, 2022, at 10:30 a.m., the Department of Commerce will hold a public hearing via Zoom to consider the proposed amendment of the above-stated rule. Interested parties may access the remote conferencing platform in the following ways:


a.    Video:




Meeting ID: 897 9834 4328                        Password: 909335


            b. Phone:   Dial in by Telephone: 406-444-9999


Meeting ID: 897 9834 4328                        Password: 909335


2. The Department of Commerce will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Commerce no later than 5:00 p.m., March 28, 2022, to advise us of the nature of the accommodation that you need. Please contact Bonnie Martello, Department of Commerce, 301 South Park Avenue, P.O. Box 200523, Helena, Montana 59620-0523; telephone (406) 841-2596; TDD 841-2702; fax (406) 841-2771; or e-mail docadministrativerules@mt.gov.


3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:



(1) through (2)(d) remain the same.

      (e) projects where the footprint of the proposed structures, pipelines, or other infrastructure would be substantially unchanged from existing conditions, and there is no increase in the population served by the facility, other than that described in (3)(d)(iii); or

      (f) and (f)(i) remain the same.

           (ii) is commenced within six months after the date of the emergency.;

      (g)  projects relating to existing infrastructure systems such as sewer systems, drinking water supply systems, and stormwater systems, including combined sewer overflow systems that involve:

(i) minor upgrading;

(ii) minor expansion of system capacity;

(iii) rehabilitation (including functional replacement) of the existing system and system components; or

(iv) construction of new minor ancillary facilities adjacent to or on the same property as existing facilities; or

(h)  projects in unsewered communities involving the replacement of existing on-site systems, provided that the new on-site systems do not result in substantial increases in the volume of discharges or in loadings of pollutants from existing sources, and do not relocate existing discharges.

     (3) through (3)(b) remain the same.

(c) the project might affect sensitive environmental or cultural resource areas or endangered or threatened species and their critical habitats.;

     (d)  for projects related to water, sewer, or stormwater infrastructure in (2)(g), if:

(i)  the action would authorize facilities that will provide a new discharge or relocate an existing discharge to ground or surface waters;

(ii)  the action would result in an increase above permit levels established for the facility under the Montana pollutant discharge elimination system or Montana ground water pollution control system for either volume of discharge or loading rate of pollutants to receiving waters;

(iii)  the action would authorize facilities that will provide capacity to serve a population at least 30% greater than the existing population;

(iv)  the action is not supported by the state, or other regional growth plan or strategy;

(v)  the action directly or indirectly involves or relates to upgrading or extending infrastructure systems primarily for the purposes of future development.

(4) remains the same.


AUTH:  2-3-103, 2-4-201, MCA

IMP:  2-3-104, 75-1-201, MCA


REASON: State agencies are provided with the option of adopting, through rulemaking, categorical exclusions that do not require further environmental review.  Through the adoption of the proposed amendments, the department is clarifying the types of actions that it considers to seldom, if ever, cause significant impacts; identifying the circumstances that could cause an otherwise excluded action to potentially have significant environmental impacts; and providing a procedure whereby these situations would be discovered and appropriately analyzed.


In 2007, the Environmental Protection Agency modified its NEPA categorical exclusion criteria, as set out in 40 CFR Section 6.204.  The proposed amendments to ARM 8.2.328 will modify the department MEPA exclusion criteria to conform to the NEPA rule. The Montana Department of Environmental Quality and the Department of Natural Resources and Conservation have adopted nearly identical exclusions.  The purpose of these changes is to bring the department's programs into conformance with other agencies and the corresponding NEPA exclusions in 40 CFR Section 6.204.


4. Concerned persons may present their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to the Department of Commerce, Director's Office, 301 South Park Avenue, P.O. Box 200501, Helena, Montana, 59620-0523; by facsimile to (406) 841-2771, or e-mail to docadministrativerules@mt.gov, and must be received no later than 5:00 p.m., April 8, 2022.


5. The Office of Legal Affairs has been designated to preside over and conduct this hearing.


6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list may make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the Department of Commerce, 301 South Park Avenue, P.O. Box 200501, Helena, Montana 59620-0501, by fax to (406) 841-2701, by e-mail to docadministrativerules@mt.gov, or by completing a request form at any rules hearing held by the department.


7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


8. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.



/s Amy Barnes                                                          /s/ Adam Schafer                            

Amy Barnes                                                              Adam Schafer

Rule Reviewer                                                          Deputy Director

                                                                                  Department of Commerce


Certified to the Secretary of State on March 1, 2022.



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