17.30.707    DEPARTMENT PROCEDURES FOR NONDEGRADATION REVIEW

(1) Upon a determination by the department that an application to degrade state waters required under this rule is complete, the department will prepare a preliminary decision either authorizing degradation or denying the application to degrade according to the procedures in ARM 17.30.708.

(2) An application to degrade state waters will be denied unless the applicant has affirmatively demonstrated and the department finds, based on a preponderance of evidence, the proposed activity to be in full compliance with 75-5-303 , MCA, using the standards set out in (3) through (6) . The department shall consider an analysis by the applicant and any substantive relevant information either submitted by the public or otherwise available.

(3) To determine that degradation is necessary because there are no economically, environmentally, and technologically feasible alternatives to the proposed activity that would result in no degradation, the department shall consider the following:

(a) The department will determine the economic feasibility of the alternative water quality protection practices by evaluating the cost effects of the proposed alternatives on the economic viability of the project and on the applicant by using standard and accepted financial analyses.

(b) In order to determine the environmental feasibility of an alternative, the department will consider whether such alternative practices are available and will compare the overall environmental impacts of the various alternatives and the commitment of resources necessary to achieve the alternatives.

(c) In order to determine technological feasibility of an alternative, the department will consider whether such alternative practices are available and consistent with accepted engineering principles.

(4) (a) To determine that the proposed activity will result in important economic or social development that exceeds the benefit to society of maintaining existing high-quality waters and exceeds the costs to society of allowing degradation of high-quality waters, the department must find that the proposed activity will provide important economic or social development which outweighs any cost to society of allowing the proposed change in water quality. In making its determination, the department may consider factors that include, but are not limited to, the following:

(i) effects on the state or local community resulting from increased employment opportunities considering the existing level of employment, unemployment, and wage levels in the area;

(ii) effects on the state or local economies;

(iii) effects on the fiscal status of the local, county or state governments and local public schools;

(iv) effects on the local or state economies (i.e., increased or reduced diversity, multiplier effects) ;

(v) effects on social or historical values;

(vi) effects on public health;

(vii) effects on housing (i.e., availability and affordability) ;

(viii) effects on existing public service systems and local educational systems; or,

(ix) correction of an environmental or public health problem.

(b) In making the determination required in (a) , the department must weigh any costs associated with the loss of high quality waters against any social or economic benefits demonstrated by the applicant. The department may also consider as a cost to society any identified and/or quantifiable negative social or economic effects resulting from the proposed activity.

(5) To determine that existing and anticipated uses of the receiving waters will be fully protected and that water quality standards will not be violated as a result of the proposed degradation, the department shall consider all available information.

(6) In order to authorize degradation under this rule, the department must determine that the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be implemented prior to, during, and after the proposed activity until the degradation no longer occurs.

(7) The department shall make its preliminary decision either authorizing degradation or denying the application to degrade within 180 days after receipt of a complete application from the applicant. This time period may be extended upon agreement of the applicant or whenever an environmental impact statement must be prepared pursuant to Title 75, chapter 1, parts 1 and 2, MCA.

(8) To the maximum extent possible, the department will coordinate any application to degrade state waters with the permitting and approval requirements of other laws or programs administered by the department or by any other local, state, or federal agency.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.