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1 HOUSE BILL NO. 681
2 INTRODUCED BY J. FITZPATRICK, K. WALSH, R. MINER, G. OBLANDER, J. DARLING
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATED TO LOCAL AND STATE
5 REGULATION OF SUBDIVISIONS AND DETERMINATIONS OF WATER AVAILABILITY; REVISING
6 SUBDIVISION REVIEW CRITERIA INVOLVING THE AVAILABILITY OF WATER; CLARIFYING THE
7 DEFINITION OF "WATER RIGHT"; REVISING PROCESSES FOR ISSUANCE OF A CERTIFICATE OF
8 WATER RIGHT FOR AN APPROPRIATION OF GROUNDWATER THAT IS EXEMPT FROM PERMITTING
9 REQUIREMENTS; AMENDING SECTIONS 76-3-501, 76-3-604, 76-3-608, 76-3-622, 76-4-104, 85-2-102, AND
10 85-2-306, MCA; AND PROVIDING A DELAYED EFFECTIVE DATE.”
11
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
13
14 Section 76-3-501, MCA, is amended to read:
15 "76-3-501. (1) The governing body of every county, city, and town
16 shall adopt and provide for the enforcement and administration of subdivision regulations reasonably providing
17 for:
18 (a) the orderly development of their jurisdictional areas;
19 (b) the coordination of roads within subdivided land with other roads, both existing and planned;
20 (c) the dedication of land for roadways and for public utility easements;
21 (d) the improvement of roads;
22 (e) the provision of adequate open spaces for travel, light, air, and recreation;
23 (f) the provision of adequate transportation, water, and drainage;
24 (g) subject to the provisions of 76-3-511, the regulation of sanitary facilities;
25 (h) the avoidance or minimization of congestion; and
26 (i) the avoidance of subdivisions that would involve unnecessary environmental degradation and
27 danger of injury to health, safety, or welfare by reason of natural hazard, including but not limited to fire and
28 wildland fire, or the lack of water, drainage, access, transportation, or other public services or that would ****
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1 necessitate an excessive expenditure of public funds for the supply of the services.
2 (2) Any action that is not specifically prohibited in the conditions of subdivision approval is
3 specifically allowed or is otherwise subject to additional restrictions that may be provided in the governing
4 documents of the subdivision and applicable zoning regulations.
5 (3) If a local government has historically interpreted and enforced or chosen not to enforce a
6 condition of subdivision approval to the benefit of a parcel owner, the local government may not undertake a
7 different interpretation or enforcement action against a similarly situated parcel owner in the same subdivision.
8 (4) A review and decision made by a governing body under the authority of this chapter:
9 (a) relates specifically and only to the criteria for review and authority provided in this chapter; and
10 (b) is not intended to constrain, influence, or restrict a decision to be made by a state agency or
11 entity acting under other lawful authority."
12
13 Section 76-3-604, MCA, is amended to read:
14 "76-3-604.
15 (1) (a) A subdivision application is considered to be received on the date of delivery to the
16 reviewing agent or agency and when accompanied by the review fee submitted as provided in 76-3-602.
17 (b) Within 5 working days of receipt of a subdivision application, the reviewing agent or agency
18 shall determine whether the application contains all of the listed materials as required by 76-3-504(1)(a) and
19 shall notify the subdivider or, with the subdivider's written permission, the subdivider's agent of the reviewing
20 agent's or agency's determination. If the reviewing agent or agency determines that elements are missing from
21 the application, the reviewing agent or agency shall identify those elements in the notification.
22 (2) (a) Within 15 working days after the reviewing agent or agency notifies the subdivider or the
23 subdivider's agent that the application contains all of the required elements as provided in subsection (1), the
24 reviewing agent or agency shall determine whether the application and required elements contain detailed,
25 supporting information that is sufficient to allow for the review of the proposed subdivision under the provisions
26 of this chapter and the local regulations adopted pursuant to this chapter and shall notify the subdivider or, with
27 the subdivider's written permission, the subdivider's agent of the reviewing agent's or agency's determination.
28 (b) If the reviewing agent or agency determines that information in the application is not sufficient ****
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1 to allow for review of the proposed subdivision, the reviewing agent or agency shall identify the insufficient
2 information in its notification.
3 (c) A determination that an application contains sufficient information for review as provided in this
4 subsection (2) does not ensure that the proposed subdivision will be approved or conditionally approved by the
5 governing body and does not limit the ability of the reviewing agent or agency or the governing body to request
6 additional information during the review process.
7 (3) The time limits provided in subsections (1) and (2) apply to each submittal of the application
8 until:
9 (a) a determination is made that the application contains the required elements and sufficient
10 information; and
11 (b) the subdivider or the subdivider's agent is notified.
12 (4) After the reviewing agent or agency has notified the subdivider or the subdivider's agent that an
13 application contains sufficient information as provided in subsection (2), the governing body shall approve,
14 conditionally approve, or deny the proposed subdivision within 60 working days or 80 working days if the
15 proposed subdivision contains 50 or more lots, based on its determination of whether the application conforms
16 to the provisions of this chapter and to the local regulations adopted pursuant to this chapter, unless:
17 (a) the subdivider and the reviewing agent or agency agree to an extension or suspension of the
18 review period, not to exceed 1 year; or
19 (b) a subsequent public hearing is scheduled and held as provided in 76-3-615.
20 (5) (a) If the governing body fails to comply with the time limits under subsection (4), the governing
21 body shall pay to the subdivider a financial penalty of $50 per lot per month or a pro rata portion of a month, not
22 to exceed the total amount of the subdivision review fee collected by the governing body for the subdivision
23 application, until the governing body denies, approves, or conditionally approves the subdivision.
24 (b) The provisions of subsection (5)(a) do not apply if the review period is extended or suspended
25 pursuant to subsection (4).
26 (6) If the governing body denies or conditionally approves the proposed subdivision, it shall send
27 the subdivider a letter, with the appropriate signature, that complies with the provisions of 76-3-620.
28 (7) (a) The governing body shall collect public comment submitted at a hearing or hearings ****
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1 regarding the information presented pursuant to 76-3-622 and shall make any comments submitted or a
2 summary of the comments submitted available to the subdivider within 30 days after conditional approval or
3 approval of the subdivision application and preliminary plat.
4 (b) The subdivider shall, as part of the subdivider's application for sanitation approval, forward the
5 comments or the summary provided by the governing body to the:
6 (i) reviewing authority provided for in Title 76, chapter 4, for subdivisions that will create one or
7 more parcels containing less than 20 acres; and
8 (ii) local health department or board of health for proposed subdivisions that will create one or
9 more parcels containing 20 acres or more and less than 160 acres.
10 (8) (a) For a proposed subdivision that will create one or more parcels containing less than 20
11 acres, the governing body may require approval by the department of environmental quality as a condition of
12 approval of the final plat.
13 (b) For a proposed subdivision that will create one or more parcels containing 20 acres or more,
14 the governing body may condition approval of the final plat upon the subdivider demonstrating, pursuant to 76-
15 3-622, that there is an adequate water source and at least one area for a septic system and a replacement
16 drainfield for each lot.
17 (c) Except for lots served by a hauled water cistern, an adequate municipal facility, or an adequate
18 county water and/or sewer district facility, as defined in 76-4-102, or that are determined to not need water, a
19 determination may be made that an application for a proposed subdivision contains the required elements and
20 sufficient information for review if the applicant demonstrates that each lot has:
21 (i) a water right under Title 85, chapter 2;
22 (ii) a completed technical analysis for a permit or change application under Title 85, chapter 2; or
23 (iii) a notice of intent to appropriate groundwater authorized by the department of natural resources
24 and conservation pursuant to 85-2-306.
25 (9) (a) Review and approval, conditional approval, or denial of a proposed subdivision under this
26 chapter may occur only under those regulations in effect at the time a subdivision application is determined to
27 contain sufficient information for review as provided in subsection (2).
28 (b) If regulations change during the review periods provided in subsections (1) and (2), the ****
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1 determination of whether the application contains the required elements and sufficient information must be
2 based on the new regulations.
3 (10) Unless otherwise provided by law, the governing body may review but does not have approval
4 authority of the governing documents of the subdivision or amendments to the governing documents unless the
5 governing documents directly and materially impact a condition of subdivision approval."
6
7 Section 76-3-608, MCA, is amended to read:
8 "76-3-608. (1) The basis for the governing body's decision to
9 approve, conditionally approve, or deny a proposed subdivision is whether the subdivision application,
10 preliminary plat, applicable environmental assessment, public hearing, planning board recommendations, or
11 additional information demonstrates that development of the proposed subdivision meets the requirements of
12 this chapter. A governing body may not deny approval of a proposed subdivision based solely on the
13 subdivision's impacts on educational services or based solely on parcels within the subdivision having been
14 designated as wildland-urban interface parcels under 76-13-145.
15 (2) The governing body shall issue written findings of fact that weigh the criteria in subsection (3),
16 as applicable.
17 (3) A subdivision proposal must undergo review for the following primary criteria:
18 (a) except when the governing body has established an exemption pursuant to subsection (6) or
19 except as provided in 76-3-509, 76-3-609(2) or (4), or 76-3-616, the specific, documentable, and clearly defined
20 impact on agriculture, agricultural water user facilities, local services, the natural environment, wildlife, wildlife
21 habitat, and public health and safety, excluding any consideration of whether the proposed subdivision will
22 result in a loss of agricultural soils;
23 (b) compliance with:
24 (i) the survey requirements provided for in part 4 of this chapter;
25 (ii) the local subdivision regulations provided for in part 5 of this chapter; and
26 (iii) the local subdivision review procedure provided for in this part;
27 (c) the provision of easements within and to the proposed subdivision for the location and
28 installation of any planned utilities; and ****
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1 (d) the provision of legal and physical access to each parcel within the proposed subdivision and
2 the required notation of that access on the applicable plat and any instrument of transfer concerning the parcel.
3 (4) The governing body may require the subdivider to design the proposed subdivision to
4 reasonably minimize potentially significant adverse impacts identified through the review required under
5 subsection (3) but may not require a set-aside of land or monetary contribution for the loss of agricultural soils.
6 Pursuant to 76-3-620, the governing body shall issue written findings to justify the reasonable mitigation
7 required under this subsection (4).
8 (5) (a) In reviewing a proposed subdivision under subsection (3) and when requiring mitigation
9 under subsection (4), a governing body may not unreasonably restrict a landowner's ability to develop land, but
10 it is recognized that in some instances the impacts of a proposed development may be deemed unmitigable
11 and will preclude approval of the subdivision.
12 (b) When requiring mitigation under subsection (4) and consistent with 76-3-620, a governing body
13 shall consult with the subdivider and shall give due weight and consideration to the expressed preference of the
14 subdivider.
15 (6) (a) A governing body may conditionally approve or deny a proposed subdivision as a result of
16 the water and sanitation information provided pursuant to 76-3-622 or public comment received pursuant to 76-
17 3-604 on the information provided pursuant to 76-3-622 only if the conditional approval or denial is based on
18 existing subdivision, zoning, or other regulations that the governing body has the authority to enforce.
19 (b) Except for proposed subdivisions served by a hauled water cistern, an adequate municipal
20 facility, or an adequate county water and/or sewer district facility, as defined in 76-4-102, or that are determined
21 to not need water, a governing body may require as a condition of subdivision approval that an applicant obtain
22 approval from the department of natural resources and conservation to appropriate water pursuant to Title 85,
23 chapter 2.
24 (7) A governing body may not require as a condition of subdivision approval that a property owner
25 waive a right to protest the creation of a special improvement district or a rural improvement district for capital
26 improvement projects that does not identify the specific capital improvements for which protest is being waived.
27 A waiver of a right to protest may not be valid for a time period longer than 20 years after the date that the final
28 subdivision plat is filed with the county clerk and recorder. ****
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1 (8) A governing body may not approve a proposed subdivision if any of the features and
2 improvements of the subdivision encroach onto adjoining private property in a manner that is not otherwise
3 provided for under chapter 4 or this chapter or if the well isolation zone of any proposed well to be drilled for the
4 proposed subdivision encroaches onto adjoining private property unless the owner of the private property
5 authorizes the encroachment. For the purposes of this section, "well isolation zone" has the meaning provided
6 in 76-4-102.
7 (9) If a federal or state governmental entity submits a written or oral comment or an opinion
8 regarding wildlife, wildlife habitat, or the natural environment relating to a subdivision application for the purpose
9 of assisting a governing body's review, the comment or opinion may be included in the governing body's written
10 statement under 76-3-620 only if the comment or opinion provides scientific information or a published study
11 that supports the comment or opinion. A governmental entity that is or has been involved in an effort to acquire
12 or assist others in acquiring an interest in the real property identified in the subdivision application shall disclose
13 that the entity has been involved in that effort prior to submitting a comment, an opinion, or information as
14 provided in this subsection.
15 (10) Findings of fact by the governing body concerning whether the development of the proposed
16 subdivision meets the requirements of this chapter must be based on the record as a whole. The governing
17 body's findings of fact must be sustained unless they are arbitrary, capricious, or unlawful."
18
19 Section 76-3-622, MCA, is amended to read:
20 "76-3-622. (1) Except as
21 provided in subsection (2), the subdivider shall submit to the governing body or to the agent or agency
22 designated by the governing body the information listed in this section for proposed subdivisions that will
23 include new water supply or wastewater facilities. The information must include:
24 (a) a vicinity map or plan that shows:
25 (i) the location, within 100 feet outside of the exterior property line of the subdivision and on the
26 proposed lots, of:
27 (A) flood plains;
28 (B) surface water features; ****
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1 (C) springs;
2 (D) irrigation ditches;
3 (E) existing, previously approved, and, for parcels less than 20 acres, proposed water wells and
4 wastewater treatment systems, except that the subdivider may locate a water well anywhere on a lot, parcel, or
5 tract of record if the subdivider maintains the minimum setback distances adopted in rule by the department of
6 environmental quality;
7 (F) for parcels less than 20 acres, mixing zones identified as provided in subsection (1)(g) (1)(h);
8 and
9 (G) the representative drainfield site used for the soil profile description as required under
10 subsection (1)(d); and
11 (ii) the location, within 500 feet outside of the exterior property line of the subdivision, of public
12 water and sewer facilities;
13 (b) a description of the proposed subdivision's water supply systems, storm water systems, solid
14 waste disposal systems, and wastewater treatment systems, including:
15 (i) whether the water supply and wastewater treatment systems are individual, shared, multiple
16 user, or public as those systems are defined in rules published by the department of environmental quality; and
17 (ii) if the water supply and wastewater treatment systems are shared, multiple user, or public, a
18 statement of whether the systems will be public utilities as defined in 69-3-101 and subject to the jurisdiction of
19 the public service commission or exempt from public service commission jurisdiction and, if exempt, an
20 explanation for the exemption;
21 (c) a drawing of the conceptual lot layout at a scale no smaller than 1 inch equal to 200 feet that
22 shows all information required for a lot layout document in rules adopted by the department of environmental
23 quality pursuant to 76-4-104;
24 (d) evidence of suitability for new onsite wastewater treatment systems that, at a minimum,
25 includes:
26 (i) a soil profile description from a representative drainfield site identified on the vicinity map, as
27 provided in subsection (1)(a)(i)(G), that complies with standards published by the department of environmental
28 quality; ****
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1 (ii) demonstration that the soil profile contains a minimum of 4 feet of vertical separation distance
2 between the bottom of the permeable surface of the proposed wastewater treatment system and a limiting
3 layer; and
4 (iii) in cases in which the soil profile or other information indicates that ground water is within 7 feet
5 of the natural ground surface, evidence that the ground water will not exceed the minimum vertical separation
6 distance provided in subsection (1)(d)(ii);
7 (e) for new water supply systems, unless cisterns are proposed, evidence of adequate water
8 availability:
9 (i) obtained from well logs or testing of onsite or nearby wells;
10 (ii) obtained from information contained in published hydrogeological reports; or
11 (iii) as otherwise specified by rules adopted by the department of environmental quality pursuant to
12 76-4-104;
13 (f) except for lots served by a hauled water cistern, an adequate municipal facility, or an adequate
14 county water and/or sewer district facility, as defined in 76-4-102, or that are determined to not need water,
15 evidence that each lot has:
16 (i) a water right under Title 85, chapter 2;
17 (ii) a completed technical analysis for a permit or change application under Title 85, chapter 2; or
18 (iii) a notice of intent to appropriate groundwater authorized by the department of natural resources
19 and conservation pursuant to 85-2-306.
20 (f)(g) evidence of sufficient water quality in accordance with rules adopted by the department of
21 environmental quality pursuant to 76-4-104;
22 (g)(h) a preliminary analysis of potential impacts to ground water quality from new wastewater
23 treatment systems, using as guidance rules adopted pursuant to 75-5-301 and 75-5-303 related to standard
24 mixing zones for ground water, source specific mixing zones, and nonsignificant changes in water quality. The
25 preliminary analysis may be based on currently available information and must consider the effects of
26 overlapping mixing zones from proposed and existing wastewater treatment systems within and directly
27 adjacent to the subdivision. Instead of performing the preliminary analysis required under this subsection
28 (1)(g)(h), the subdivider may perform a complete nondegradation analysis in the same manner as is required ****
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1 for an application that is reviewed under Title 76, chapter 4.
2 (2) A subdivider whose land division is excluded from review under 76-4-125(1) is not required to
3 submit the information required in this section.
4 (3) A governing body may not, through adoption of regulations, require water and sanitation
5 information in addition to the information required under this section unless the governing body complies with
6 the procedures provided in 76-3-511."
7
8 Section 76-4-104, MCA, is amended to read:
9 "76-4-104. (1) The department shall, subject to the
10 provisions of 76-4-135, adopt reasonable rules, including adoption of sanitary standards, necessary for
11 administration and enforcement of this part.
12 (2) The rules and standards must provide the basis for approving subdivisions for various types of
13 public and private water supplies, sewage disposal facilities, storm water drainage ways, and solid waste
14 disposal. The rules and standards must be related to:
15 (a) size of lots;
16 (b) contour of land;
17 (c) porosity of soil;
18 (d) ground water level;
19 (e) distance from lakes, streams, and wells;
20 (f) type and construction of private water and sewage facilities; and
21 (g) other factors affecting public health and the quality of water for uses relating to agriculture,
22 industry, recreation, and wildlife.
23 (3) The storm drainage review requirements of this chapter do not apply to divisions or parcels of
24 land that are exempt from review under 76-3-207(1)(a), (1)(d), (1)(e), or (1)(f) that:
25 (a) are used for a single-family residential purpose; and
26 (b) include no more than 25% that is impervious.
27 (4) (a) Except as provided in subsection (4)(b), the rules must provide for the review of
28 subdivisions consistent with 76-4-114 by a local department or board of health, as described in Title 50, chapter ****
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1 2, part 1, if the local department or board of health employs a registered sanitarian or a registered professional
2 engineer and if the department certifies under subsection (5) that the local department or board is competent to
3 conduct the review.
4 (b) (i) Except as provided in 75-6-121 and subsection (4)(b)(ii) of this section, a local department or
5 board of health may not review public water supply systems, public sewage systems, or extensions of or
6 connections to these systems.
7 (ii) A local department or board of health may be certified by the department to review subdivisions
8 proposed to connect to existing municipal or county water and/or sewer district water and wastewater systems
9 previously approved by the department if no extension of the systems is required.
10 (5) (a) The department shall also adopt standards and procedures for certification and maintaining
11 certification to ensure that a local department, local board of health, or independent reviewer is competent to
12 review the subdivisions as described in subsection (4).
13 (b) On or before December 31, 2023, the department shall develop procedures for certification of
14 prequalified independent reviewers and develop a training curriculum to ensure compliance with this part.
15 (6) The department shall review those subdivisions described in subsection (4) if:
16 (a) a proposed subdivision lies within more than one jurisdictional area and the respective
17 governing bodies are in disagreement concerning approval of or conditions to be imposed on the proposed
18 subdivision; or
19 (b) the local department or board of health elects not to be certified.
20 (7) The rules must further provide for:
21 (a) providing the reviewing authority with a copy of the plat or certificate of survey subject to review
22 under this part and other documentation showing the layout or plan of development, including:
23 (i) total development area; and
24 (ii) total number of proposed units and structures requiring facilities for water supply or sewage
25 disposal;
26 (b) adequate evidence that a water supply that is sufficient in terms of physical quality, quantity,
27 and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed;
28 (c) evidence concerning the potability of the proposed water supply for the subdivision; ****
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1 (d) adequate evidence that a sewage disposal facility is sufficient in terms of capacity and
2 dependability;
3 (e) standards and technical procedures applicable to storm drainage plans and related designs, in
4 order to ensure proper drainage ways, except that the rules must provide a basis for not requiring storm water
5 review under this part for parcels 5 acres and larger on which the total impervious area does not and will not
6 exceed 5%. Nothing in this section relieves any person of the duty to comply with the requirements of Title 75,
7 chapter 5, or rules adopted pursuant to Title 75, chapter 5.
8 (f) standards and technical procedures applicable to sanitary sewer plans and designs, including
9 soil testing and site design standards for on-lot sewage disposal systems when applicable;
10 (g) standards and technical procedures applicable to water systems;
11 (h) standards and technical procedures applicable to solid waste disposal;
12 (i) adequate evidence that a proposed drainfield mixing zone and a proposed well isolation zone
13 are located wholly within the boundaries of the proposed subdivision where the proposed drainfield or well is
14 located or that an easement or, for public land, other authorization has been obtained from the landowner to
15 place the proposed drainfield mixing zone or proposed well isolation zone outside the boundaries of the
16 proposed subdivision where the proposed drainfield or proposed well is located.
17 (i) A proposed drainfield mixing zone or a proposed well isolation zone for an individual water
18 system well that is a minimum of 50 feet inside the subdivision boundary may extend outside the boundaries of
19 the subdivision onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities.
20 (ii) This subsection (7)(i) does not apply to the divisions provided for in 76-3-207 except those
21 under 76-3-207(1)(b). Nothing in this section is intended to prohibit the extension, construction, or
22 reconstruction of or other improvements to a public sewage system within a well isolation zone that extends
23 onto land that is dedicated for use as a right-of-way for roads, railroads, or utilities.
24 (j) criteria for granting waivers and deviations from the standards and technical procedures
25 adopted under subsections (7)(e) through (7)(i);
26 (k) evidence to establish that, if a public water supply system or a public sewage system is
27 proposed, provision has been made for the system and, if other methods of water supply or sewage disposal
28 are proposed, evidence that the systems will comply with state and local laws and regulations that are in effect ****
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1 at the time of submission of the subdivision application under this chapter. Evidence that the systems will
2 comply with local laws and regulations must be in the form of a certification from the local health department as
3 provided by department rule.
4 (l) evidence to demonstrate that appropriate easements, covenants, agreements, and
5 management entities have been established to ensure the protection of human health and state waters and to
6 ensure the long-term operation and maintenance of water supply, storm water drainage, and sewage disposal
7 facilities;
8 (m) eligibility requirements for municipalities and county water and/or sewer districts to qualify as a
9 certifying authority under the provisions of 76-4-127;
10 (n) construction details for individual and shared onsite wastewater systems to be reviewed by the
11 local board of health at the time of septic permitting, except that the reviewing authority may require additional
12 construction detail if the wastewater is not residential strength;
13 (o) simplified methods for storm water reviews, including acceptable minimum storm water
14 volumes based solely on impervious area for proposed lots with one or two single-family residences; and
15 (p) a basis for exempting from review facilities previously approved under this chapter or by a local
16 reviewing authority of the facility is not proposed to be changed, is not affected by a proposed change to
17 another facility, and meets the design conditions of its existing approval under this chapter or by the local
18 authority and is operating properly. Existing systems must meet the current setbacks established in rule and
19 subsection (7)(i), unless the lot was created before the relevant effective dates for mixing zones and isolation
20 zones.
21 (8) The requirements of subsection (7)(i) regarding proposed drainfield mixing zones and proposed
22 well isolation zones apply to all subdivisions or divisions excluded from review under 76-4-125 created after
23 October 1, 2021, except as provided in subsections (7)(i)(i) and (7)(i)(ii).
24 (9) The department shall:
25 (a) conduct a biennial review of experimental wastewater system components that have been
26 granted a waiver or deviation as provided in subsection (7)(j);
27 (b) utilize relevant analysis of wastewater system components approved in other states and data
28 from peer-reviewed third-party studies to conduct the review provided in subsection (9)(a); ****
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1 (c) propose those experimental wastewater system components that meet the purposes and
2 provisions of this part for adoption into the rules pursuant to this section; and
3 (d) report to the local government interim committee biennially, in accordance with 5-11-210, the
4 number and type of experimental wastewater system components reviewed and the number and type of system
5 components approved and provide written findings to explain why a system component was reviewed but not
6 approved.
7 (10) Review and certification or denial of certification that a division of land is not subject to sanitary
8 restrictions under this part may occur only under those rules in effect when a complete application is submitted
9 to the reviewing authority, except that in cases in which current rules would preclude the use for which the lot
10 was originally intended, the applicable requirements in effect at the time the lot was recorded must be applied.
11 In the absence of specific requirements, minimum standards necessary to protect public health and water
12 quality apply.
13 (11) The reviewing authority may not deny or condition a certificate of subdivision approval under
14 this part unless it provides a written statement to the applicant detailing the circumstances of the denial or
15 condition imposition. The statement must include:
16 (a) the reason for the denial or condition imposition;
17 (b) the evidence that justifies the denial or condition imposition; and
18 (c) information regarding the appeal process for the denial or condition imposition.
19 (12) (a) Subject to subsection (12)(b), the department may adopt rules that provide technical details
20 and clarification regarding the water and sanitation information required to be submitted under 76-3-622.
21 (b) A subdivider may locate a water well anywhere on a lot, parcel, or tract of record if the
22 subdivider maintains the minimum setback distances adopted in rule. The reviewing authority may not limit a
23 subdivider to a single proposed well location.
24 (13) (a) The rules must provide for the review of subdivisions consistent with 76-4-114 by an
25 independent reviewer if the department certifies under subsection (5) of this section that the independent
26 reviewer is competent to conduct the review.
27 (b) (i) Except as provided in subsection (13)(b)(ii), an independent reviewer may not review public
28 water supply systems, public sewage systems, or extensions of or connections to these systems. ****
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1 (ii) An independent reviewer may be certified by the department to review subdivisions proposed
2 to connect to existing municipal or county water and/or sewer district water and wastewater systems previously
3 approved by the department if no extension of the system is required.
4 (c) If 110 or more new files are submitted to the department for review in any 1 month, the
5 department shall assign applications received in that month to independent reviewers unless an independent
6 reviewer is not available.
7 (d) The department shall reimburse independent reviewers at the same rate the department
8 reimburses local departments or local boards of health certified under subsection (4).
9 (14) Prior to being assigned an application for review, an independent reviewer shall identify any
10 conflict of interest related to the project under potential review. If the independent reviewer identifies a conflict
11 of interest, the application for review must be assigned to a different independent reviewer.
12 (15) An independent reviewer acting under the requirements of this chapter shall comply with the
13 provisions of Title 2, chapter 6, for public information requests.
14 (16) An independent reviewer conducting reviews under this section shall complete documents
15 necessary to complete the review and to comply with:
16 (a) the Montana Environmental Policy Act provided for in Title 75, chapter 1, parts 1 through 3; and
17 (b) real property takings requirements in accordance with Title 70."
18
19 Section 85-2-102, MCA, is amended to read:
20 "85-2-102.
21 apply:
22 (1) "Appropriate" or "appropriation" means:
23 (a) to divert, impound, or withdraw, including by stock for stock water, a quantity of water for a
24 beneficial use;
25 (b) in the case of a public agency, to reserve water in accordance with 85-2-316;
26 (c) in the case of the department of fish, wildlife, and parks, to change an appropriation right to
27 instream flow to protect, maintain, or enhance streamflows to benefit the fishery resource in accordance with
28 85-2-436; ****
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1 (d) in the case of the United States department of agriculture, forest service:
2 (i) instream flows and in situ use of water created in 85-20-1401, Article V; or
3 (ii) to change an appropriation right to divert or withdraw water under subsection (1)(a) to instream
4 flow to protect, maintain, or enhance streamflows in accordance with 85-2-320;
5 (e) temporary changes or leases for instream flow to maintain or enhance instream flow to benefit
6 the fishery resource in accordance with 85-2-408;
7 (f) a use of water for aquifer recharge or mitigation; or
8 (g) a use of water for an aquifer storage and recovery project as provided in 85-2-368.
9 (2) "Appropriation right" has the same meaning as "water right" as defined in this section.
10 (3) "Aquifer recharge" means either the controlled subsurface addition of water directly to the
11 aquifer or controlled application of water to the ground surface for the purpose of replenishing the aquifer to
12 offset adverse effects resulting from net depletion of surface water.
13 (4) "Aquifer storage and recovery project" means a project involving the use of an aquifer to
14 temporarily store water through various means, including but not limited to injection, surface spreading and
15 infiltration, drain fields, or another department-approved method. The stored water may be either pumped from
16 the injection well or other wells for beneficial use or allowed to naturally drain away for a beneficial use.
17 (5) "Beneficial use", unless otherwise provided, means:
18 (a) a use of water for the benefit of the appropriator, other persons, or the public, including but not
19 limited to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power,
20 and recreational uses;
21 (b) a use of water appropriated by the department for the state water leasing program under 85-2-
22 141 and of water leased under a valid lease issued by the department under 85-2-141;
23 (c) a use of water by the department of fish, wildlife, and parks through a change in an
24 appropriation right for instream flow to protect, maintain, or enhance streamflows to benefit the fishery resource
25 authorized under 85-2-436;
26 (d) a use of water through a temporary change in appropriation right or lease to enhance instream
27 flow to benefit the fishery resource in accordance with 85-2-408;
28 (e) a use of water for aquifer recharge or mitigation; or ****
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1 (f) a use of water for an aquifer storage and recovery project as provided in 85-2-368.
2 (6) "Certificate" means a certificate of water right issued by the department.
3 (7) (a) "Change in appropriation right" means a change in the place of diversion, the place of use,
4 the purpose of use, or the place of storage.
5 (b) The term does not include a change in water use related to the method of irrigation.
6 (8) "Commission" means the fish and wildlife commission provided for in 2-15-3402.
7 (9) "Correct and complete" means that the information required to be submitted conforms to the
8 standard of substantial credible information and that all of the necessary parts of the form requiring the
9 information have been filled in with the required information for the department to begin evaluating the
10 information.
11 (10) "Declaration" means the declaration of an existing right filed with the department under section
12 8, Chapter 452, Laws of 1973.
13 (11) "Department" means the department of natural resources and conservation provided for in Title
14 2, chapter 15, part 33.
15 (12) "Developed spring" means any point where ground water emerges naturally, that has
16 subsequently been physically altered, and from which ground water flows under natural pressures or is
17 artificially withdrawn.
18 (13) "Existing right" or "existing water right" means a right to the use of water that would be
19 protected under the law as it existed prior to July 1, 1973. The term includes federal non-Indian and Indian
20 reserved water rights created under federal law and water rights created under state law.
21 (14) "Ground water" means any water that is beneath the ground surface.
22 (15) "Late claim" means a claim to an existing right forfeited pursuant to the conclusive presumption
23 of abandonment under 85-2-226.
24 (16) "Mitigation" means the reallocation of surface water or ground water through a change in
25 appropriation right or other means that does not result in surface water being introduced into an aquifer through
26 aquifer recharge to offset adverse effects resulting from net depletion of surface water.
27 (17) "Municipality" means an incorporated city or town organized and incorporated under Title 7,
28 chapter 2. ****
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1 (18) (a) "National forest system lands" means all lands within Montana that are owned by the United
2 States and administered by the secretary of agriculture through the forest service.
3 (b) The term does not include any lands within the exterior boundaries of national forest system
4 units that are not owned by the United States and administered by the secretary of agriculture through the
5 forest service.
6 (19) "Nonconsumptive use" means a beneficial use of water that does not cause a reduction in the
7 source of supply and in which substantially all of the water returns without delay to the source of supply,
8 causing little or no disruption in stream conditions.
9 (20) "Permit" means the permit to appropriate issued by the department under 85-2-301 through 85-
10 2-303 and 85-2-306 through 85-2-314.
11 (21) "Person" means an individual, association, partnership, corporation, state agency, political
12 subdivision, the United States or any agency of the United States, or any other entity.
13 (22) (a) "Political subdivision" means any county, incorporated city or town, public corporation, or
14 district created pursuant to state law or other public body of the state empowered to appropriate water.
15 (b) The term does not mean a private corporation, association, or group.
16 (23) "Salvage" means to make water available for beneficial use from an existing valid appropriation
17 through application of water-saving methods.
18 (24) "State water reservation" means a water right created under state law after July 1, 1973, that
19 reserves water for existing or future beneficial uses or that maintains a minimum flow, level, or quality of water
20 throughout the year or at periods or for defined lengths of time.
21 (25) "Stream depletion zone" means an area where hydrogeologic modeling concludes that as a
22 result of a ground water withdrawal, the surface water would be depleted by a rate equal to at least 30% of the
23 ground water withdrawn within 30 days after the first day a well or developed spring is pumped at a rate of 35
24 gallons a minute.
25 (26) "Substantial credible information" means probable, believable facts sufficient to support a
26 reasonable legal theory upon which the department should proceed with the action requested by the person
27 providing the information.
28 (27) "Waste" means the unreasonable loss of water through the design or negligent operation of an ****
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1 appropriation or water distribution facility or the application of water to anything but a beneficial use.
2 (28) "Water" means all water of the state, surface and subsurface, regardless of its character or
3 manner of occurrence, including but not limited to geothermal water, diffuse surface water, and sewage
4 effluent.
5 (29) "Water division" means a drainage basin as defined in 3-7-102.
6 (30) "Water judge" means a judge as provided for in Title 3, chapter 7.
7 (31) "Water master" means a master as provided for in Title 3, chapter 7.
8 (32) (a) "Water right" means the right to appropriate water pursuant to an existing right, a permit, a
9 certificate of water right, a state water reservation, or a compact.
10 (b) The term does not include an authorized notice of intent to appropriate groundwater pursuant
11 to 85-2-306.
12 (33) "Watercourse" means any naturally occurring stream or river from which water is diverted for
13 beneficial uses. It does not include ditches, culverts, or other constructed waterways.
14 (34) "Well" means any artificial opening or excavation in the ground, however made, by which
15 ground water is sought or can be obtained or through which it flows under natural pressures or is artificially
16 withdrawn."
17
18 Section 85-2-306, MCA, is amended to read:
19 "85-2-306. (1) (a) Except as provided in subsection (1)(b),
20 ground water may be appropriated only by a person who has a possessory interest in the property where the
21 water is to be put to beneficial use and exclusive property rights in the ground water development works.
22 (b) If another person has rights in the ground water development works, water may be
23 appropriated with the written consent of the person with those property rights or, if the ground water
24 development works are on national forest system lands, with any prior written special use authorization required
25 by federal law to occupy, use, or traverse national forest system lands for the purpose of diversion,
26 impoundment, storage, transportation, withdrawal, use, or distribution of water under the certificate.
27 (c) If the person does not have a possessory interest in the real property from which the ground
28 water may be appropriated, the person shall provide to the owner of the real property written notification of the ****
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1 works and the person's intent to appropriate ground water from the works. The written notification must be
2 provided to the landowner at least 30 days prior to constructing any associated works or, if no new or expanded
3 works are proposed, 30 days prior to appropriating the water. The written notification under this subsection is a
4 notice requirement only and does not create an easement in or over the real property where the ground water
5 development works are located.
6 (2) Inside the boundaries of a controlled ground water area, ground water may be appropriated
7 only:
8 (a) according to a permit received pursuant to 85-2-508; or
9 (b) according to the requirements of a rule promulgated pursuant to 85-2-506.
10 (3) (a) Outside the boundaries of a controlled ground water area, a permit is not required before
11 appropriating ground water by means of a well or developed spring:
12 (i) when the appropriation is made by a local governmental fire agency organized under Title 7,
13 chapter 33, and the appropriation is used only for emergency fire protection, emergency fire training, and
14 emergency fire-related operations, which may include enclosed storage;
15 (ii) when a maximum appropriation of 350 gallons a minute or less is used in nonconsumptive
16 geothermal heating or cooling exchange applications, all of the water extracted is returned without delay to the
17 same source aquifer, and the distance between the extraction well and both the nearest existing well and the
18 hydraulically connected surface waters is more than twice the distance between the extraction well and the
19 injection well;
20 (iii) when the appropriation is outside a stream depletion zone, is 35 gallons a minute or less, and
21 does not exceed 10 acre-feet a year, except that a combined appropriation from the same source by two or
22 more wells or developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit; or
23 (iv) when the appropriation is within a stream depletion zone, is 20 gallons a minute or less, and
24 does not exceed 2 acre-feet a year, except that a combined appropriation from the same source by two or more
25 wells or developed springs exceeding this limitation requires a permit.
26 (b) (i) Before appropriating groundwater by means of a well or developed spring pursuant to
27 subsection (3)(a)(iii) or (3)(a)(iv), a person shall file with the department, on a form provided by the department,
28 a correct and complete notice of intent to appropriate groundwater. ****
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1 (ii) The department shall notify the person of any defects in the notice of intent to appropriate
2 groundwater within 10 business days.
3 (iii) A notice of intent to appropriate groundwater that is not corrected and completed within 60
4 days of a notice of defects is terminated.
5 (iv) Within 10 business days of determining that a notice of intent to appropriate groundwater is
6 correct and complete, the department shall review the notice for compliance with subsection (3)(a) and shall
7 authorize or deny the notice of intent to appropriate groundwater. If the department denies the notice of intent to
8 appropriate groundwater, the department shall include the reasons for the denial.
9 (v) Unless extended by the department, an appropriation under subsection (3) must be completed
10 within 5 years from the date the notice of intent to appropriate groundwater is authorized. One extension may
11 be granted by the department for up to 5 additional years. The request for an extension must be filed on a form
12 provided by the department and must demonstrate that progress has been made toward putting the water to
13 beneficial use.
14 (b)(c) (i) Within 60 days of completion of the well or developed spring and appropriation of the ground
15 water for beneficial use, the appropriator shall file a notice of completion with the department on a form
16 provided by the department through its offices.
17 (ii) Water use by a public water supply system subject to Title 75, chapter 6, part 1, is considered
18 perfected and the appropriation of water for beneficial use complete when construction of the public water
19 supply system is finished, at which time a notice of completion may be filed and must include a copy of the
20 approval of the public water supply system by the department of environmental quality. All water use by a public
21 water supply system pursuant to subsection (3)(a)(iii) or (3)(a)(iv) must be measured using a totalizing metering
22 device, and measurements must be reported annually on a form prescribed by the department. Noncompliance
23 with metering and reporting requirements may result in a fine determined by the department.
24 (ii)(iii) Upon On receipt of the notice of completion, the department shall review the notice and may,
25 before issuing a certificate of water right, return a defective notice for correction or completion, together with the
26 reasons for returning it. A correct and complete notice of completion for an appropriation under subsection
27 (3)(a)(iii) or (3)(a)(iv) must establish that the appropriation was completed in substantial accordance with the
28 notice of intent to appropriate groundwater authorized by the department under subsection (3)(b). A notice does ****
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1 not lose priority of filing because of defects if the notice is corrected, completed, and refiled with the department
2 within 30 60 days of notification of defects or within a further time as the department may allow, not to exceed 6
3 months.
4 (iii)(iv) If a notice is not corrected and completed within the time allowed, the priority date of
5 appropriation is the date of refiling a correct and complete notice with the department authorization expires and
6 a new notice of intent to appropriate groundwater is required to use water under subsection (3)(a)(iii) or
7 (3)(a)(iv).
8 (c)(d) A certificate of water right may not be issued until a correct and complete notice has been filed
9 with the department, including proof of landowner notification or a written federal special use authorization as
10 necessary under subsection (1). The original of the certificate must be sent to the appropriator and a duplicate
11 must be maintained in the department's centralized database. The department shall keep a copy of the
12 certificate in its office in Helena. The date of filing of the notice of completion is the date of priority of the right.
13 (d) (i) Construction of a water supply system subject to Title 75, chapter 6, part 1, and use of a
14 permit exception for the appropriation of water pursuant to this section is proof of beneficial use.
15 (ii) The department shall allocate a volume of 10 acre-feet a year to the system and issue a
16 certificate of water right after the conditions in subsection (3)(d)(i) are met.
17 (iii) The department shall consider a water right as perfected after the conditions in subsection
18 (3)(d)(i) are met.
19 (iv) When the appropriation is for a water supply system that is subject to Title 75, chapter 6, part 1,
20 and is located outside of a stream depletion zone and does not exceed 10 acre-feet a year:
21 (A) For the purposes of subsection (3)(b)(i), the appropriation will be considered perfected upon
22 completion of construction of the water supply system.
23 (B) A copy of the department of environmental quality approval for the water supply system must
24 be submitted with the notice of completion. This section does not preclude the public water supply developer or
25 any subsequent owners from expanding the water system or from revising the water use restrictions within the
26 subdivision, provided that the total amount does not exceed 10 acre-feet per year.
27 (C) Water appropriated under this exception must be measured and reported annually to the
28 department. ****
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1 (4) An appropriator of ground water by means of a well or developed spring first put to beneficial
2 use between January 1, 1962, and July 1, 1973, who did not file a notice of completion, as required by laws in
3 force prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in
4 subsection (3), with the department to perfect the water right. The filing of a claim pursuant to 85-2-221 is
5 sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the
6 filing of a notice, as provided in subsection (3), or the date of the filing of the claim of existing water right.
7 (5) An appropriation under subsection (4) is an existing right, and a permit is not required.
8 However, the department shall acknowledge the receipt of a correct and complete filing of a notice of
9 completion, except that for an appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year,
10 the department shall issue a certificate of water right. If a certificate is issued under this section, a certificate
11 need not be issued under the adjudication proceedings provided for in 85-2-236.
12 (6) A permit is not required before constructing an impoundment or pit and appropriating water for
13 use by livestock if:
14 (a) the maximum capacity of the impoundment or pit is less than 15 acre-feet;
15 (b) the appropriation is less than 30 acre-feet a year;
16 (c) the appropriation is from an ephemeral stream, an intermittent stream, or another source other
17 than a perennial flowing stream; and
18 (d) the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is
19 owned or under the control of the applicant and that is 40 acres or larger.
20 (7) (a) Within 60 days after constructing an impoundment or pit, the appropriator shall apply for a
21 permit as prescribed by this part. Subject to subsection (7)(b), upon receipt of a correct and complete
22 application for a stock water provisional permit, the department shall automatically issue a provisional permit. If
23 the department determines after a hearing that the rights of other appropriators have been or will be adversely
24 affected, it may revoke the permit or require the permittee to modify the impoundment or pit and may then make
25 the permit subject to terms, conditions, restrictions, or limitations that it considers necessary to protect the rights
26 of other appropriators.
27 (b) If the impoundment or pit is on national forest system lands, an application is not correct and
28 complete under this section until the applicant has submitted proof of any written special use authorization ****
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1 required by federal law to occupy, use, or traverse national forest system lands for the purpose of diversion,
2 impoundment, storage, transportation, withdrawal, use, or distribution of water under the permit.
3 (8) A person may also appropriate water without applying for or prior to receiving a permit under
4 rules adopted by the department under 85-2-113.
5 (9) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior
6 boundaries of the Flathead Indian reservation."
7
8 NEW SECTION. Section 8. [This act] is effective January 1, 2026.
9 - END -