Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF NATURAL RESOURCES

AND CONSERVATION OF THE STATE OF MONTANA

In the matter of the adoption of New Rule I relating to the Categorical Exclusion of the State Revolving Fund Grant Issuance Under the Montana Environmental Policy Act

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

To: All Concerned Persons

1. On August 17, 2021, at 1:00 p.m., the Department of Natural Resources and Conservation (department) will hold a public hearing in the C.M. Russell Room, located at 1539 Eleventh Avenue, Helena, MT, second floor, and via Zoom, to consider the proposed adoption of the above-stated rule.

The Zoom information is as follows:

Topic: Hearing on Proposal Notice MAR No. 36-22-212

Time: Aug 17, 2021 01:00 PM Mountain Time (U.S. and Canada)

Join Zoom Meeting

https://mt-gov.zoom.us/j/86936312252?pwd=OGRiR3ZMUklGUFNwZUswTStFM1QvZz09

Meeting ID: 869 3631 2252

Password: 982750

Dial by Telephone

+1 646 558 8656 or +1 406 444 9999

Meeting ID: 869 3631 2252

Password: 982750

Find your local number: https://mt-gov.zoom.us/u/kea64gzcPu

Join by SIP

[email protected]

Join by H.323 (Polycom)

162.255.37.11##86936312252

2. The department 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 no later than 5:00 p.m. on August 13, 2021, to advise us of the nature of the accommodation that you need. Please contact Autumn Coleman, Department of Natural Resources and Conservation, 1539 Eleventh Avenue, Helena, MT 59601, 406-444-6687; or email [email protected].

3. The department proposes to adopt the following rule:

NEW RULE I PROJECTS ELIGIBLE FOR CATEGORICAL EXCLUSION FROM MONTANA ENVIRONMENTAL POLICY ACT (MEPA) REVIEW (1) Except as provided in (2), a department action under Title 75, chapter 5, part 11, MCA, and this subchapter is excluded from the requirement to prepare an environmental assessment (EA) or environmental impact statement (EIS) if the application for department review is for any of the following grant, loan, and/or bond programs: state revolving fund, renewable resource, reclamation and development, rangeland, aquatic invasive species, American Rescue Plan Act of 2021, Pub. L. No. 117-2 (2021) (ARPA) and HB 632, 67th Legislature, 2021, water and sewer infrastructure. The exclusion in this rule includes the re-financing and interim financing of projects that are funded in whole or in part by the aforementioned grant, loan, and/or bond programs and includes:

(a) projects relating to existing infrastructure systems such as sewer and septic systems, drinking water supply systems, and stormwater systems, including combined sewer overflow systems, dams, culverts, headgates, canal lining, siphons, pipelines, pump sites, lift stations, irrigation infrastructure, 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

(b) replacing, repairing, and installation of fencing for protection of riparian area;

(c) 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;

(d) use of sampling and monitoring wells to test for the presence of contaminants such as, but not limited to, metals and petroleum; and

(e) activities that do not involve or lead directly to construction, such as planning studies, scientific research and analysis, surveys, or engineering.

(2) A categorical exclusion may not be granted for a department action under (1) if:

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

(b) 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;

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

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

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

(f) the department has received information indicating that public controversy exists over the project's potential effects on the quality of the human environment; or

(g) the department determines that the proposed project that is the subject of the state action shows some potential for causing a significant effect on the quality of the human environment, based on ARM 36.2.524, or might possibly affect:

(i) sensitive environmental or cultural resource areas; or

(ii) endangered or threatened species and their critical habitats.

(3) The department shall document its decision to issue a categorical exclusion by referencing the application, providing a brief description of the proposed action, and describing how the action meets the criteria for a categorical exclusion in (1) without violating the criteria in (2).

(4) The department may revoke a categorical exclusion if:

(a) the project is not initiated within the time period specified in the facility plan, or a new or modified application is submitted;

(b) the proposed action no longer meets the requirements for a categorical exclusion because of changes in the proposed action;

(d) state, local, tribal, or federal laws may be violated.

AUTH: 76-14-116, 80-7-1018, 85-1-612, 90-2-1105, MCA, Section 43, House Bill 632, 67th Legislature, 2021

IMP: 76-14-102, 76-14-103, 76-14-111, 76-14-113, 76-14-114, 76-14-115, 80-7-1017, 80-7-1018, 85-1-601, 85-1-602, 85-1-605, 85-1-606, 85-1-608, 85-1-609, 85-1-610, 85-1-611, 85-1-612, 85-1-613, 85-1-614, 85-1-616, 85-1-617, 85-1-618, 85-1-619, 85-1-620, 85-1-621, 85-1-622, 85-1-624, 85-1-631, 90-2-1105, 90-2-1111, 90-2-1112, 90-2-1113, 90-2-1114, MCA, Sections 1 through 5, House Bill 632, 67th Legislature, 2021

REASONABLE NECESSITY: In 2009, the Montana Department of Environmental Quality (DEQ) adopted ARM 17.40.318, which categorically excludes certain state revolving fund projects from MEPA review. The department and DEQ work together on state revolving fund projects, but the department independently administers a part of the state revolving fund loan program. Additionally, the department administers grants for projects funded pursuant to ARPA and the 2021 Legislature's House Bill 632, as well as the renewable resource grant, loan and bond program, reclamation and development grant and loan program, the rangeland improvement loan program, and the aquatic invasive species grant program. As such, a categorical exclusion that applies to these department functions is required, as ARM 17.40.318 does not apply to the department. This proposed rule will bring the program into compliance with ARM and statute and provide clarity and guidance to the public and the program.

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 in writing to: Autumn Coleman, Department of Natural Resources and Conservation, 1539 Eleventh Avenue, Helena, MT 59601, 406-444-6687, [email protected], and must be received no later than 5:00 p.m., August 23, 2021.

5. Autumn Coleman, Department of Natural Resources and Conservation, 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 shall 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 Natural Resources and Conservation, PO Box 201601, 1539 Eleventh Avenue, Helena, MT 59620-1601; fax (406) 444-2684; e-mail [email protected]; 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.

8. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rule will not significantly and directly impact small businesses. Documentation of the board's above-stated determination is available upon request to the Department of Natural Resources and Conservation, Attn: Resource Development Bureau, P.O. Box 201601, 1539 Eleventh Avenue, Helena, MT 59620-1601.

/s/ Amanda Kaster /s/ Mark Phares

Amanda Kaster Mark Phares

Director Rule Reviewer

Natural Resources and Conservation

Certified to the Secretary of State July 13, 2021.