Montana Administrative Register Notice 8-2-135 No. 18   09/24/2015    
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In the matter of the adoption of New Rule I pertaining to actions that qualify as categorical exclusions under the Montana Environmental Policy Act







TO: All Concerned Persons


          1. On July 30, 2015, the Department of Commerce published MAR Notice No. 8-2-135 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 966 of the 2015 Montana Administrative Register, Issue Number 14.


2.  The department has adopted New Rule I (8.2.328), but with the following changes to the original proposal, stricken matter interlined, new matter underlined:


NEW RULE I (8.2.328) ACTIONS THAT QUALIFY FOR A CATEGORICAL EXCLUSION (1) and (2) remain as proposed.

          (3)  Actions described in (2) may not be processed as categorical exclusions if:

          (a) they involve a substantial public controversy over the project's potential effect on the quality of the human environment;

          (b) through (4) remain as proposed.


AUTH:  2-3-103, 2-4-201, MCA

IMP:  2-3-104, 75-1-201, MCA


3. On August 24, 2015, a public hearing was held on the proposed adoption of the above-stated rule. Comments were received until the September 1, 2015 deadline.


          4. The department has thoroughly considered the comments and testimony received. One commenter provided comments in regard to these rules, raising two issues.


COMMENT NO. 1: The "public controversy" language in (3)(a) of the proposed new rule is not found within MEPA or any Montana Administrative Rules. This standard will require any project of any sort that has public opposition to conduct an EA or an EIS, which will delay projects and increase costs for applicants.


RESPONSE NO. 1: The MEPA Model Rules define a categorical exclusion as "a type of action which does not individually, collectively, or cumulatively require an EA or EIS, as determined by rulemaking or programmatic review adopted by the agency, unless extraordinary circumstances, as defined by rulemaking or programmatic review, occur." Section (3) of the proposed rule sets forth those extraordinary circumstances under which a categorical exclusion would not be the appropriate level of environmental review in considering applications for grants or loans from the department. By contrast, under the National Environmental Policy Act, the existence of a public controversy is one factor that federal agencies are to consider in determining the significance of an impact on the environment resulting from the proposed project.  The "extraordinary circumstances" adopted by the Montana Department of Environmental Quality (ARM 17.40.318(2)(f)), the Montana Department of Fish, Wildlife, and Parks (ARM 12.2.454(2)(e)), and the Montana Department of Transportation (ARM 18.2.261(5)(e)) all contain public controversy language similar to that of proposed (3)(a). However, the department has modified the final rule to provide that public controversy alone must be substantial in order to justify the preparation of an EA or EIS. In the absence of the categorical exclusions proposed by the department, most applications for grants and loans from the department must already prepare an EA or EIS; under the new rule, some of these applicants may be able to use a categorical exclusion, thereby avoiding potential delays and costs associated with a higher level of environmental review. 


COMMENT NO. 2: The use of the terms "footprint" and "no increase in the population served by the facility" in (2)(e) of the proposed rule "tightens" the exemption set forth in (2)(d), leaving minor infrastructure upgrade projects subject to more intensive MEPA analysis and forcing the preparation of an EA, at a minimum, for even minor upgrades within an existing right-of-way. 


RESPONSE NO. 2: Each one of the six types of actions set forth in (2) of the new rule are separate and independent grounds for meeting the criteria for use of a categorical exclusion. Thus, the additional limitations contained in the categorical exclusion set forth in (2)(e) do not apply to the types of actions that would qualify as a categorical exclusion under (2)(d). 


As set forth in Response No. 1, categorical exclusions are necessarily limited to those actions which do not individually, collectively, or cumulatively require an EA or EIS.  Projects that involve infrastructure upgrades or replacement of entire facilities, as the commenter notes, are likely to or are intended to serve a larger population than served by the current facility. Such projects typically involve the potential to individually, collectively, or cumulatively have a significant impact on the human environment, and therefore require an EA or EIS under MEPA. In some cases, however, such projects will take place entirely within the footprint of the existing facility, and involve no upsizing or increase in service capacity. It is these limited types of projects in this category that the new exclusion is designed to address. Under existing department rules, an application for a grant or loan to finance such a project must always prepare an EA or EIS; under the new rule, these applicants will be able to use the new categorical exclusion, thereby avoiding potential delays and costs associated with a higher level of environmental review. 




/s/ Kelly A. Lynch                                  /s/ Douglas Mitchell                              

KELLY A. LYNCH                                 DOUGLAS MITCHELL

Rule Reviewer                                       Deputy Director

                                                             Department of Commerce



Certified to the Secretary of State September 14, 2015.


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