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Montana Administrative Register Notice 17-341 No. 22   11/23/2012    
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.36.340 and 17.36.605 pertaining to lot sizes:  exemptions and exclusions

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

(SUBDIVISIONS/ON-SITE SUBSURFACE WASTEWATER TREATMENT)

 

            TO:  All Concerned Persons

 

            1.  On December 14, 2012, at 9:30 a.m., the Department of Environmental Quality will hold a public hearing in Room 111, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2.  The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., December 3, 2012, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

 

            3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

            17.36.340  LOT SIZES:  EXEMPTIONS  (1)  This rule sets out, for purposes of the review of proposed subdivisions, the requirements for minimum lot or parcel size and the criteria for varying the minimum size.  Proposed subdivisions involving mobile homes, trailer courts, campgrounds, multiple family dwellings, and commercial or industrial development are also subject to this rule.

            (a) remains the same.

            (b)  The department may allow, pursuant to a waiver under ARM 17.36.601, lot sizes smaller than one acre only for lots created before July 1, 1973, and for alteration of lots created before April 15, 2003, as provided in (1)(b)(i), and only after approval by the local health department.  To qualify for a waiver, the applicant shall provide adequate evidence as set out in (1)(b)(ii) and (iii) to demonstrate that water quality is protected.

            (i)  For purposes of this rule, "alteration" of lots created before April 15, 2003, means combining lots by eliminating common boundaries, redefining lots by relocating common boundaries, or a combination of both.  An alteration of lots under this rule must also meet the following requirements:

            (A) through (e)(iv) remain the same.

 

            AUTH:  76-4-104, MCA

            IMP:  76-4-104, MCA

 

            REASON:  The amendment to ARM 17.36.340 removes "eliminating common boundaries" from the definition of "alteration" of lots.  Under the proposed new ARM 17.36.605(3) below, aggregations of parcels (i.e., eliminating common boundaries) are not considered new subdivisions.  Removal of this language from the lot size requirements in ARM 17.36.340 is necessary to implement the proposed amendments to ARM 17.36.605.

 

            17.36.605  EXCLUSIONS  (1)  The exclusions in this rule are in addition to the exclusions set out in 76-4-111 and 76-4-125(2), MCA.  A subdivision excluded under 76-4-111 or 76-4-125(2), MCA, is subject to review under 76-4-130, MCA, if the subdivision causes facilities previously approved under Title 76, chapter 4, part 1, MCA, to deviate from the conditions of approval.

            (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)  a parcel that has no existing facilities for water supply, wastewater disposal, storm drainage, and or solid waste disposal, if no new facilities will be constructed on the parcel;

            (b)  a parcel that has no existing facilities for water supply, wastewater disposal, or solid waste disposal other than those that were previously approved by the reviewing authority a previous approval issued under Title 76, chapter 4, part 1, MCA, or that were exempt from such review, if:

            (i)  no new facilities other than those previously approved exist or will be constructed on the parcel; and

            (ii)  the division of land will not cause approved facilities to violate any conditions of approval, and will not cause exempt facilities to violate any conditions of exemption deviate from the conditions of approval, in violation of 76-4-130, MCA.;

            (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)  no new facilities will be constructed on the parcel;

            (ii)  existing facilities complied with state and local laws and regulations, including permit requirements, which were applicable at the time of installation; and

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

            (A)  existing septic tanks have been pumped within the previous three years; and

            (B)  the parcel includes acreage or features sufficient to accommodate a replacement drainfield.

            (3)  Aggregations of parcels are not subdivisions subject to review, except that an aggregation is subject to review under 76-4-130, MCA, if any parcel included in the aggregation has a previous approval issued under Title 76, chapter 4, part 1, MCA.

 

            AUTH:  76-4-104, MCA

            IMP:  76-4-125, MCA

 

            REASON:  The proposed amendment of ARM 17.36.605(1) clarifies that subdivisions that are excluded from review under 76-4-111 or 76-4-125(2)(a), MCA, must still be reviewed under 76-4-130, MCA, if the excluded division of land causes facilities that were previously approved by the department to deviate from the conditions of approval.  In those cases, 76-4-130, MCA, prohibits the deviation until it has been approved by the department.  The proposed amendment is necessary to clarify the application of 76-4-130, MCA, in those circumstances.

            ARM 17.36.605(2)(a), the "no facilities exclusion," excludes parcels that have no sanitation facilities if none will be constructed on the parcel.  The proposed amendments remove the term "existing," because that term does not add meaning.  The use of "existing" has also caused confusion about whether this exclusion applies to the re-division of a parcel that has approved facilities that have not yet been constructed.  As discussed below, ARM 17.36.605(2)(b) applies in those cases.  The proposed amendments also add storm drainage to the list of sanitation facilities.  The Sanitation Act requires that the department review plans for storm water drainage.  Section 76-4-104(6)(e), MCA.  This amendment is necessary to ensure that a new parcel that has only storm drainage features (e.g., a parcel for rental storage units) will be subject to review under the Sanitation Act.

            The proposed amendments to ARM 17.36.605(2)(b)(i) and (ii) remove the exclusion for prior exempt parcels and move it, in modified form, to new ARM 17.36.605(2)(c).  The amendments also make minor wording changes to clarify that the previous approval for the parcel must be one that was issued under the Sanitation Act, that the exemption does not apply if alteration of the parcel causes facilities to violate the conditions of the approval in violation of 76-4-130, MCA, and that the exemption can apply to a parcel that has approved facilities that have not yet been constructed.  The amendments are necessary to clarify the application of the exclusion in those circumstances.

            Proposed new ARM 17.36.605(2)(c) rewords the current exclusion in ARM 17.36.605(2)(b) for "previously exempt" parcels.  This applies to parcels that were not subject to Sanitation Act review when they were created, but whose boundaries are now proposed to be altered.  The amendments state that the new parcel is excluded if no new facilities are proposed, existing facilities complied with state and local laws and regulations, including permit requirements that were applicable at the time of installation, and the local health officer determines that existing facilities are adequate for the proposed use.  The local health officer, as a condition of the exemption, may require evidence that existing septic tanks were pumped within the previous three years, and may require identification of an area for a replacement drainfield.  The effect of the amendment will be to expand the exclusion to exclude parcels where the original basis for exemption no longer applies (e.g., grandfathered parcels), but where no Sanitation Act review is necessary.  The proposed amendments are necessary to eliminate review of parcels where no Sanitation Act issues exist.

            Proposed new ARM 17.36.605(3) excludes aggregations of parcels from review under the Sanitation Act.  The current rules include aggregations at ARM 17.36.340.  This was based on the former designation of aggregations as "divisions of land" under the Montana Subdivision and Platting Act (MSPA).  The similar definitions of "subdivision" in the MSPA and the Sanitation Act call for similar treatment of aggregations under both definitions.  However, amendments to the MSPA in 2009 clarified that aggregations were distinct from divisions of land.  Sec. 12, Ch. 446, L. 2009; § 76-3-207, MCA.  The proposed amendment is necessary to implement a corresponding change in the interpretation of the Sanitation Act.  The amendment clarifies that aggregations are not subdivisions and are reviewed only under 76-4-130, MCA, which applies when a parcel included in an aggregation has a prior approval under the Sanitation Act.  In those cases the prior approval must be rewritten to reflect the new parcel name and dimensions.

 

            4.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., December 21, 2012.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

            5.  David Dennis, attorney, has been designated to preside over and conduct the 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 shall make a written request that includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supplies; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA.  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 Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; e-mailed to ejohnson@mt.gov; or may be made 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.

 

Reviewed by:                                                DEPARTMENT OF ENVIRONMENTAL

                                                                        QUALITY

 

/s/ James M.Madden                           BY:  /s/ Richard H. Opper                                   

JAMES M. MADDEN                                   RICHARD H. OPPER, Director

Rule Reviewer

 

Certified to the Secretary of State, November 13, 2012.

 

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