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| Montana Administrative Register Notice 17-421 | No. 24 12/23/2022 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On January 23, 2023, at 10:00 a.m., the Department of Environmental Quality (department) will hold a public hearing in Room 111 of the Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed adoption, transfer, transfer and amendment, amendment, and repeal of the above-stated rules. The department is committed to preventing the spread of COVID-19 and promoting the health and wellness of others. Members of the public may participate either in-person or virtually. For in-person meetings, while face masks are not required, meeting attendees are welcome to wear masks. If you are not feeling well, please do not attend the in-person meeting. Registration with Zoom may be made at the following link: https://mt-gov.zoom.us/j/87099209117?pwd=MERvamJMZlB4TGNKemNnNXUrRVA5Zz09 Passcode: 195684 Description: MAR 17-421 - Subdivision Rulemaking
Or One tap mobile: +12133388477,,87099209117#,,,,*195684# US (Los Angeles) +12063379723,,87099209117#,,,,*195684# US (Seattle)
Or join by phone: Dial(for higher quality, dial a number based on your current location): US: +1 213 338 8477 or +1 206 337 9723 or +1 646 558 8656 Webinar ID: 870 9920 9117 Passcode: 195684 International numbers available: https://mt-gov.zoom.us/u/kbFJm3y3qk
Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East) Webinar ID: 870 9920 9117 Passcode: 195684
SIP: [email protected] Passcode: 195684
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., January 17, 2023, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at: P.O. Box 200901, Helena, Montana, 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail [email protected].
3. GENERAL REASON STATEMENT
In this notice of proposed rulemaking, the department proposes an extensive reorganization with a few significant modifications to the department's subdivision rules for water, wastewater, storm water, and solid waste facilities. Throughout this notice, the department proposes to remove duplicative requirements, to reorganize existing requirements to make them more clear and intuitive to use, and to remove requirements that fail to protect the environment or further the purposes of the Sanitation in Subdivisions Act. A considerable number of the proposed changes involve transferring and consolidating existing requirements. The department's existing rules are separated by the type of facility under review and contain both procedural requirements and design standards. As discussed with more specificity below, the department proposes to transfer all non-public water design standards to a single department circular and to consolidate related procedural requirements into simplified rules. In most instances, the proposed reorganization does not involve substantive changes. Unless otherwise noted in this notice, the department proposes to maintain existing requirements for the same reasons those rules were initially adopted, and the department incorporates those previous statements of reasonable necessity. Among the more significant substantive procedural changes are the proposed changes to ARM 17.36.112, which would remove unnecessary re-review of previously approved facilities in new subdivisions and would make it easier for a person to make minor changes to their certificate of subdivision approval through the use of a revised lot layout or an approval from the local reviewing authority. Also significant are the proposed changes to the requirements for professional engineers for storm water designs in ARM 17.36.310. These changes would eliminate the requirement for a professional engineer for all lots, regardless of use, with less than 25 percent impervious area; would remove the expiration date of approved plans and align the need for certifications and as-builts with real-world development schedules; and provide an exemption for storm water design for lots over 5 acres in size with less than 5 percent impervious area in certain circumstances. In ARM 17.36.320, the department proposes a significant change to the level of design detail that must be submitted to the reviewing authority at the time of subdivision review for septic systems. These changes would not change the requirements for such systems. Rather, the department recognizes that certain design details are better reviewed by local health departments at the time of septic permitting rather than at the time of state subdivision review. The proposed changes would still require submittal of all necessary information for the department to evaluate setbacks and nondegradation, but would allow more flexibility for septic installation. As part of the department's overall reorganization, the department proposes to remove design requirements for multiple-user water systems from Circular DEQ-3 and to consolidate all design requirements for individual, shared, and multiple-user water systems in new Circular DEQ-20. This new circular would also incorporate and consolidate the requirements currently in Circular DEQ-11, concerning springs, and those in Circular DEQ-17, concerning cisterns. The department proposes one change to Circular DEQ-4 to align with the proposed changes to ARM 17.36.320. Other changes to DEQ-4 are outside the scope of this rulemaking. The department plans to revisit DEQ-4 in the future with Phase II of its comprehensive review of subdivision rules, but no other changes are proposed in this notice. These and other substantive changes are discussed in more detail below. The department also proposes some stylistic changes to the existing requirements. These stylistic changes (including, for example, new numbered lists, simplified language, changes in confusing terminology, etc.) are proposed to make the requirements easier to understand and administer.
4. The rule proposed to be adopted is as follows:
NEW RULE I WATER SYSTEMS (1) Plans for proposed subdivision facilities that include public water supply systems must be reviewed in accordance with the provisions of Title 75, chapter 6, MCA, and ARM Title 17, chapter 38, subchapter 1. (2) Non-Public Water Systems must comply with Circular DEQ-20. (3) Systems requiring design by a professional engineer per DEQ-20 or ARM 17.38.101 are subject to the requirements of ARM 17.36.121.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: NEW RULE I is a proposed signpost rule that would direct applicants to the relevant requirements for public water systems, nonpublic water systems, and those systems requiring design by a professional engineer. Section (1) of the proposed rule is currently in ARM 17.36.333(2) and would be transferred without substantive change. Section (2) of the proposed rule reflects the proposed addition of Circular DEQ-20, discussed elsewhere in this notice of proposed rulemaking. The professional engineer requirements of (3) are currently adopted in ARM 17.36.333(1)(b)(i) and would be transferred with updated cross-references.
5. The rules proposed to be transferred provide as follows:
17.36.309 (17.36.120) SOLID WASTES
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to transfer current ARM 17.36.309 to ARM 17.36.120 for the reasons stated in the General Reason Statement.
AUTH: 76-4-104, MCA
REASON: The department proposes transferring ARM 17.36.312 to ARM 17.36.124 for the reasons discussed above in the General Reason Statement.
AUTH: 76-4-104, MCA
REASON: The department proposes transferring ARM 17.36.313 to ARM 17.36.125 for the reasons discussed above in the General Reason Statement.
6. The rules proposed to be amended and transferred provide as follows, stricken matter interlined, new matter underlined:
17.36.314 (17.36.121) REQUIREMENTS FOR SYSTEMS DESIGNED BY PROFESSIONAL ENGINEERS (1) The requirements in this rule apply to systems for which plans and specifications must be submitted to the department by a professional engineer under ARM 17.36.310(2) (2) through (5) remain the same.
AUTH: 76-4-104, MCA
REASON: The department proposes to move the existing requirements regarding professional engineers that are currently in ARM 17.36.314 to ARM 17.36.121 to streamline the administrative rules and make them easier to use. The proposed changes would update the cross-references and correct the implementing statute reference, but the rule would remain substantively unchanged.
17.36.326 (17.36.122)
(3) When required by department circulars or this chapter, an operation and maintenance manual must be provided for water supply, wastewater treatment, and storm water facilities meeting the requirements of that circular or rule. (4) Easements must be obtained if the reviewing authority determines they are needed to allow adequate operation and maintenance of the system or to comply with (a) in writing signed by the grantor of the easement that adequately describes what is being conveyed, contains language of conveyance, and identifies the grantor and grantee of the easement; or (b) remains the same. (5) If an application includes a shared or multiple-user (6) Proposed drainfield mixing zones and proposed well isolation zones, as those terms are defined in 76-4-102, MCA, must be wholly within the boundaries of a lot as provided in this section. This rule applies to all subdivisions subject to review under Title 76, chapter 4, MCA, including new subdivision applications, subdivision rewrites, revised lot layouts, and minor deviations, except as provided in (c). For purposes of this rule, a setback envelope or provisional mixing zone is equivalent to a drainfield mixing zone. (a) For lots created after March 30, 2011, a proposed drainfield mixing zone must be located wholly within the boundaries of the lot unless: (i) the adjoining land is owned by the same person; (ii) an easement has been obtained for the mixing zone from the affected landowner; (iii) for public land, appropriate authorization has been obtained from the public entity; or (iv) the mixing zone extends onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities. (b) For lots created after October 1, 2013, a proposed well isolation zone must be located wholly within the boundaries of the lot unless: (i) the adjoining land is owned by the same person; (ii) an easement has been obtained for the well isolation zone from the affected landowner; (iii) for public land, appropriate authorization has been obtained from the public entity; or (iv) for individual wells only, the well is located a minimum of 50 feet inside the lot boundary and extends onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities. (c) This rule does not apply to the following: (i) divisions provided for in 76-3-207, MCA, except for family transfers under 76-3-207(1)(b), MCA; (ii) lots created before October 1, 2021, and excluded from review pursuant to 76-4-125, MCA; or (iii) changes to an existing well isolation zone or mixing zone that was previously approved under Title 76, chapter 4, MCA, if the changes would not increase the size, location, or boundaries of the existing isolation or mixing zone.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: In (1) through (5), the department proposes a reorganization and slight rewording of existing requirements related to ownership, operation and maintenance, and user agreements. In (4)(a), the department proposes additional language about the contents of a written easement. This is not substantively new but responds to questions from applicants regarding acceptable easement forms. Section (6) would clarify the requirements of 76-4-104(6)(i), MCA, concerning proposed well isolation and drainfield mixing zones. These requirements would be consistent with current agency procedures and interpretations but are necessary to provide regulatory transparency and consistency. Under this section, a proposed isolation or mixing zone would be required to remain wholly within the boundaries of a lot unless the adjoining land impacted by the isolation or mixing zone is owned by the same person or if an easement has been obtained from the adjoining landowner. Under this rule, an applicant could allow isolation and mixing zones to cross internal lot lines of the proposed subdivision but could not impact adjacent landowners by allowing an isolation zone or mixing zone to cross external lot lines without an easement from the affected adjacent landowner. This same logic applies once the lots have sold and are owned by different lot owners: even though the lots were originally owned by a single property owner, any new isolation or mixing zones that cross internal property boundaries would impact the adjacent landowner. This section would also differentiate between lots based on the date the lot was created. The statutory provisions implemented by this rule apply only to "proposed subdivisions"—that is, subdivisions created after the effective date of the statute, and it is necessary to indicate which lots are subject to which requirements. In some instances, application of this rule might lead to impacts to adjoining landowners. For instance, a subdivision lot that was created before 2011 might add a second home with a second mixing zone that crosses onto adjoining property. Based on the existing statutory language, however, consideration of this issue must be addressed by the Legislature. Proposed (6)(c) would consolidate the various statutory exemptions in one place, with wording improvements to make the exemptions easier to understand. In (6)(c)(iii), the department proposes to specifically exempt changes to previously approved isolation or mixing zones if the changes do not increase the size, location, or boundaries of the existing isolation or mixing zone. Such changes might include, for example, a change from an individual well to a shared well, or an increase in the approved flow of a drainfield. In such cases, no new impacts to the adjacent landowner would occur.
17.36.328 (17.36.123) CONNECTION TO PUBLIC WATER SUPPLY AND WASTEWATER SYSTEMS (1) New water supply and sewage disposal facilities in a (2) and (3) remain the same. (4) The department may grant a waiver to the requirement in (1). In addition to the requirements of ARM 17.36.601, a waiver request from this setback must demonstrate that: (a) connection to the public system is physically impractical; or (b) easements cannot be obtained.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to move the requirements for public water and wastewater system connections from ARM 17.36.328 to ARM 17.36.123 for the reasons discussed above in the General Reason Statement. Currently, the rule requires subdivisions to connect to a public system if a public system is within 500 feet of the subdivision. The department may grant a waiver from this requirement if connection to the public system is physically or economically impractical, which under current rules means the cost of constructing the connection to the system is more than three times the cost of constructing approvable systems on the site. Experience in administering this rule has revealed the difficulty of determining when a connection is economically impractical. Cost estimates considered by the department vary in the accuracy, scope, and components listed which make granting a waiver dependent on subjective criteria. Likewise, feedback from stakeholders indicates that contractor cost estimates for projects that may not be completed are not an effective use of their time. On the other hand, connection to public systems is often preferable because of increased monitoring requirements and the ongoing regulatory relationship with such systems. To balance these, the department proposes eliminating the economic impracticality standard in favor of reducing the distance to public systems from 500 feet to 300 feet. This would reduce the number of expensive longer distance connections but would ensure that closer systems would connect to public facilities. These changes would also make the rule more transparent, predictable, and easier for both consultants and reviewing authorities to administer. The department proposes to maintain the allowance in the rule to not require connection if the connection would create an environmental or public health risk or if the connection would be physically impractical or easements cannot be obtained. The determination of whether a connection is physically impractical is based on site specific conditions that would require specialized construction methods to install the connection. The other remaining proposed changes to the rule consist of wording, updates, and organizational improvements, which are otherwise not substantive changes.
17.36.345 (17.36.126) ADOPTION BY REFERENCE (1) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below: (a) and (b) remain the same. (c) Department Circular DEQ-3, "Standards for Small Water Systems," (d) Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems," (e) through (g) remain the same. (i) remains the same but is renumbered (h). (i) Department Circular DEQ-20, "Standards for Non-Public Water Systems, "2023 edition; (k) through (n) remain the same, but are renumbered (j) through (m). (2) remains the same.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to transfer ARM 17.36.345 to ARM 17.36.126 as part of the department's proposed rule reorganization discussed above in the General Reason Statement. The department also proposes adopting and incorporating the 2023 edition of DEQ-4 and the new circular DEQ-20, which are proposed to be adopted in this notice. As discussed in the reason statement for the new circular DEQ-20, the department also proposes to transfer the requirements of circulars DEQ-11 and DEQ-17 to the new circular DEQ-20.
7. The rules proposed to be amended are as follows, new matter underlined, deleted matter interlined:
17.36.101 DEFINITIONS For purposes of subchapters 1, 3, 6, and 8, the following definitions apply: (1) "Accessory building" (2) "Approved well drilling area" is an area or areas designated on a lot layout within which a well may be drilled. The area must meet all required well location setbacks, including those for well isolation zones. (2) through (8) remain the same, but are renumbered (3) through (9).
(10) and (11) remain the same, but are renumbered (11) and (12).
(13) and (14) remain the same, but are renumbered (14) and (15).
(16) through (20) remain the same, but are renumbered (17) through (21).
(23) through (27) remain the same, but are renumbered (24) through (28).
(29) remains the same, but is renumbered (30).
(31) through (37) remain the same, but are renumbered (32) through (38).
(39) "Permanent space" means a space, regardless of occupancy, for recreational camping vehicles or mobile homes, with facilities for the supply of water or disposal of sewage provided by individual hookups, a service building, or centralized dump stations for sewage or fill stations for water. (39) through (44) remain the same, but are renumbered (40) through (45).
(46) and (47) remain the same.
(48) "Seasonal use" means use for not more than a total of four months (120 days) during any calendar year.
(50) through (56) remain the same, but are renumbered (49) through (55).
(58) remains the same, but is renumbered (56).
(61) through (69) remain the same, but are renumbered (57) through (65).
(71) and (72) remain the same, but are renumbered (67) and (68).
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to amend the definitions of "accessory building," "connection," "drainageway," "existing system," "ground water monitoring," "holding tank," "local health officer," "main," and "well" to include or update cross-references to other rules and statutes where those terms are already defined. This would remove duplicative definitions and ensure consistent definitions across department programs. No substantive changes are proposed to these definitions. The department also proposes removing the definitions of "percolation test," "redoximorphic features" or "mottling," "sealed pit privy," "seasonally high groundwater," "soil consistence," "soil structure," and "soil texture." The terms are currently defined in either subchapter 9 or Circular DEQ-4, which is adopted by reference in ARM 17.36.345. This would eliminate redundant definitions. ARM 17.36.345 would be transferred to ARM 17.36.126. The department proposes to adopt a new definition for "approved well drilling area" in conjunction with section 1.4.2 of proposed Circular DEQ-20 to provide greater flexibility in developing well locations without triggering additional review. The department proposes to adopt a new definition for "permanent space" for RVs and mobile homes. Although 76-4-102(23), MCA, requires that lots that provide permanent multiple spaces for RVs and mobile homes are subdivisions that must undergo department subdivision review, the statute does not define that term, and a definition is necessary to provide regulatory transparency and consistency for RV and mobile home spaces. The department's proposed definition would apply to those spaces with individual risers or centralized facilities for the supply of water and disposal of sewage for the department to review. This definition would consider the facilities as an indication of permanence rather than the occupancy of the space. It is not practical for the department or the reviewing authority to monitor occupancy or to add or remove the requirement for subdivision review based on changes in occupancy. The department considered, but ultimately rejected, including dry spaces—that is, parking spaces without water or sewer facilities—within this definition. The department ultimately decided not to include dry spaces because they do not contain facilities to be reviewed and are not exclusive to RVs or mobile homes.
17.36.102 APPLICATION--GENERAL (1) To initiate review of (2) A subdivision application must be on a form (3) remains the same. (4) To resume review of an application that has been inactive for more than one year after the issuance of a denial letter by the reviewing authority, the applicant shall reapply and submit fees as required by subchapter 8, unless the file is inactive due to ground water monitoring, or other requirements imposed by the reviewing authority or another agency. (5) Plans for proposed subdivision facilities that will be public water supply or public sewage disposal systems must be reviewed in accordance with the provisions of Title 75, chapter 6, MCA, and ARM Title 17, chapter 38, subchapter 1. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5.
(8) The application procedures and requirements for previously approved facilities are described in ARM 17.36.112.
AUTH: 76-4-104, MCA
REASON: The department proposes several housekeeping and wording changes to update the rule and make it more clear. These changes are not substantive. In (4), the department proposes to allow an application that has been dormant for more than a year to be resumed if the cause for the delay is a requirement imposed by another agency. Because these delays may be outside the control of the applicant, it is unfair to require the applicant to reapply and submit new fees in such situations. Section (5) was transferred from current ARM 17.36.106(3), and would be in a more appropriate location for the current rule.
17.36.103 APPLICATION--CONTENTS (1) In addition to the completed application form required by ARM 17.36.102, the following information must be submitted to the reviewing authority as part of (a) a fee calculation sheet, as provided by the department, and payment of (b) one copy of a design report and one copy of plans and specifications for water supply, wastewater treatment, and storm water systems
(d) remains the same, but is renumbered (c).
(i) a small-scale vicinity map showing lakes, streams, irrigation ditches, wetlands, and springs located within 1/2 mile from any existing or proposed well or drainfield or perimeter of the subdivision; and (ii) a large-scale vicinity map showing existing
(k) remains the same, but is renumbered (g). (h) evidence that storm water facilities will be of sufficient size and located to ensure proper drainage and treatment in accordance with ARM 17.36.310;
(l) if planning and platting approval is required under Title 76, chapter 3, MCA, the applicant must provide: (i) a copy of the preliminary plat approval and findings of fact; and (ii) any public comments or summaries of public comments collected as provided in 76-3-604(7), MCA;
(i) (ii) (o) for projects within reservation boundaries, water rights predetermination information or the equivalent authorization may be provided by the appropriate water management board;
(p) a copy of any existing certificate of subdivision approval and the approved lot layout document; (q) a letter from the Montana Sage Grouse Habitat Conservation Program or evidence that the subdivision is located outside designated sage grouse habitat as required under Executive Order 12-2015; (v) and (w) remain the same, but are renumbered (r) and (s).
AUTH: 76-4-104, MCA
REASON: The department proposes several changes to ARM 17.36.103, which sets forth requirements for subdivision applications. These changes would more accurately describe the application process, reduce duplication in other parts of the rules, consolidate similar requirements, and update relevant cross-references. These changes also would remove extraneous requirements by focusing on that information necessary for the reviewing authority to review a subdivision application. In addition to these changes, the department proposes to modify the vicinity map requirements to ensure that applications legibly present relevant information and account for various features that may affect the proposed facilities. Both small-scale and large-scale vicinity maps are necessary because small-scale maps help in locating the subdivision but may not show adjacent developments, existing public systems, potential sources of contamination, or surface waters that may be close to the development. These changes also would extend the extent of interest for the small-scale vicinity map from 100 feet to 1/2 mile. This is necessary to address potential impacts between facilities and surface waters. This also covers the requirement to perform the adjacent to surface water trigger value analysis if there is high quality surface water within 1/2 mile down gradient of a proposed drainfield. The large-scale map would have public water and wastewater facilities, drainfields, and mixing zones within 500 feet of the subdivision and any lagoons or other sources of contamination within 1,000 of any drinking water well. This is necessary because the location of potential sources of contamination is needed for the reviewer to verify lagoon setbacks are met and non-degradation can be done correctly. The vicinity maps now require sources of contamination to be shown. Including all sources of contamination on the lot layout can make them difficult to read, impact the scale of the lot layout, and is unnecessary if the information is provided to the reviewer on the vicinity map. The proposed changes would remove (1)(g), which provides submittal requirements for applications with groundwater sources, to streamline the rule. These requirements are more appropriately located in the vicinity map requirements in proposed (1)(d) and in section 1.4.2 of proposed Department Circular DEQ-20. The department only proposes to reorganize these requirements; no substantive changes have been proposed. The proposed changes would remove (1)(i), which provides submittal requirements for applications that propose subsurface wastewater treatment systems. These requirements would be more appropriately incorporated into ARM 17.36.320(3). No substantive changes have been proposed. The proposed changes would remove (1)(j), which provides submittal requirements for applications that propose gray water irrigation systems. These requirements are already set forth ARM 17.36.319 and need not be repeated in this rule. In (1)(n) and (o), the department proposes updates to the requirements for water rights information. In (1)(n), a water rights letter would be required for relocations of existing multiple-user wells, which are most likely to impact water rights. A statement regarding a controlled groundwater area also would be required, since wells located in a controlled groundwater area may be designated due to lack of dependable water or pollution which could impact setbacks or the quality and dependability of water supplies. In (1)(o), the department proposes updated water rights language that is necessary to address current and future changes to water right jurisdiction based on tribal water compacts.
17.36.104 APPLICATION--LOT LAYOUT DOCUMENT (1) The applicant shall provide (2) remains the same. (a) the name of the subdivision, and the county, section, township and range (e.g., "Sec. 12 T27N R6E") in which the (b) through (f) remain the same. (h) and (i) remain the same, but are renumbered (g) and (h).
TABLE 1 REQUIREMENTS FOR LOT LAYOUTS
AUTH: 76-4-104, MCA
REASON: The department proposes minor changes to ARM 17.36.104, which provides requirements for what must be included on the lot layout that is included with subdivision applications. These are housekeeping and wording changes to update the rule and make the requirements congruent with the information the department needs to review subdivision applications. The proposed amendment to (2)(i) that facilities within 100 feet of the subdivision be shown on the lot layout is made in conjunction with the department's proposed amendments to the vicinity maps in ARM 17.36.103. Showing the facilities within 100 feet of the subdivision on the lot layout is necessary to ensure that appropriate setbacks and other requirements have been met, while further sources of contamination are more appropriately shown on small- and large-scale vicinity maps, as discussed in the reason statement for ARM 17.36.103.
17.36.106 REVIEW PROCEDURES—LOTS FILED WITH SANITARY RESTRICTIONS BEFORE 1973 (2) remains the same, but is renumbered (1). (a) if a subsurface wastewater treatment system is utilized, soil conditions must provide for safe treatment and disposal of wastewater effluent; (b) the proposed water supply must comply with the requirements of this chapter; and (b) and (b)(i) remain the same, but are renumbered (c) and (c)(i). (ii) the site for any subsurface wastewater treatment system may not exceed 25 percent in slope; and (iii) no part of the lot utilized for the subsurface wastewater treatment system components addressed in Department Circular DEQ-4, Chapter 6 may be located in a 100-year floodplain
AUTH: 76-4-104, MCA IMP: 76-4-104, 76-4-114, 76-4-125, MCA
REASON: The department proposes minor housekeeping changes, including a title change, to ARM 17.36.106, which provides requirements for subdivision lots recorded with sanitary restrictions before July 1, 1973, to make the rule more intuitive to understand. The department proposes removing the requirement in (3), which would be more appropriately transferred to NEW RULE I and ARM 17.36.102(5). No substantive changes to the rule are proposed.
17.36.108 COMPLIANCE WITH LOCAL REQUIREMENTS (1) remains the same. (a) for an application that is not subject to review by a local reviewing authority under 76-4-104, MCA, a certification of compliance that is signed by the local health officer having jurisdiction. The applicant shall submit the certification to the department (b) remains the same.
AUTH: 76-4-104, MCA
REASON: The department proposes to remove the requirement in (1) that an applicant must submit a certificate of compliance with local regulations with the subdivision application. This documentation is required before the department may approve the subdivision but is not necessary to be included in the initial application. The proposed deletion of (2) would remove redundant requirements listed in ARM 17.36.110.
17.36.112 (1) A facility previously approved under Title 76, chapter 4, MCA, that is submitted for review under this chapter is not subject to review if the facility:
(a) is not proposed to be changed;
(b) is not affected by a proposed change to another facility; and
(c) meets the conditions of its existing approval and is operating properly. (i) To determine whether previously approved water, sewer, and storm water facilities are operating properly, the reviewing authority may require submittal of well logs, water sampling results, any septic permit issued, and evidence that the septic tank has been pumped in the previous three years unless the system is less than five years old. (2) The owner of a parcel (3) Applications for amendments (rewrites) of certificates of subdivision approval must be submitted in accordance with ARM 17.36.102. The facilities are subject to the rules and standards in effect at the time the application is submitted, except that, if a requirement in the applicable rules and standards would preclude a previously approved use of the parcel, the department may consider a deviation or waive the requirement that would preclude the use. Waivers and deviations are subject to ARM 17.36.601. Applications for rewrites must also describe any changes to previously approved facilities. The reviewing authority may require the applicant to submit additional information that the reviewing authority determines is necessary for the review.
(4) Amendments that consist solely of the relocation or modification of previously approved facilities may be made through approval of a revised lot layout document in accordance with (a) through (c). (a) A revised lot layout document may be issued for lots with previously approved facilities if: (i) the changes consist solely of the relocation or modification of previously approved facilities shown on the lot layout that do not affect the conditions of approval in a COSA statement; (ii) there are no changes in lot boundaries; and (iii) the changes comply with applicable rules. Changes in previously approved facilities are subject to the rules and standards in effect at the time the application is submitted, except that, if a requirement in the applicable rules and standards would preclude a previously approved use of the parcel, the department may consider a deviation or waive the requirement that would preclude the use. Revised lot layouts must show any changes to previously approved facilities. The reviewing authority may require the applicant to submit additional information that the reviewing authority determines is necessary for the review. (b) An applicant seeking approval of a revised lot layout must submit all of the following to the reviewing authority: (i) a completed joint application, including the applicable review fee; (ii) a copy of the revised lot layout document that complies with ARM 17.36.104; and (iii) all other information that the reviewing authority deems necessary to demonstrate compliance with applicable rules. (c) The approved revised lot layout must be filed with the county clerk and recorder and a copy must be provided to the department.
(5) At the time of septic permitting, local health departments that have been certified as the reviewing authority under ARM 17.36.116 may approve minor deviations from a certificate of subdivision approval without triggering an additional review under this chapter. (a) The proposed minor deviations must meet the requirements of the most current version of DEQ-4 and this rule. (b) Minor deviations are limited to: (i) replacing distribution piping with gravelless trenches or vice versa; (ii) replacing a standard trench system with a pressure-dosed system; (iii) replacing a previously approved system with an equivalent system; (iv) replacing components in a previously approved system with equivalent components; (v) replacing the wastewater treatment system with a system that provides greater treatment than the approved system; (vi) installing any Level 2 system in place of any other Level 2 system that provides equivalent treatment; and (vii) approving changes to sizes of approved wastewater treatment systems, unless there are site constraints that would cause a violation of this chapter.
(6) Amendments to an existing certificate of subdivision approval that consist solely of replacing approved facilities for the supply of drinking water or disposal of wastewater with connection to a municipal or county public water system or public wastewater system must be submitted using a notification of change form provided by the department or by submitting an application under ARM 17.36.112(3).
AUTH: 76-4-104, MCA IMP: 76-4-125, MCA
REASON: The department proposes several updates to the requirements regarding previously approved facilities, subdivision rewrites, and approval of deviations from the conditions of approval under 76-4-130, MCA. These rule changes would ensure that the level of review for proposed modifications is commensurate with the significance of the modifications. Section (1) concerns subdivision applications that involve facilities previously approved under Title 76, chapter 4, MCA. Under the existing rule, previously approved facilities are not subject to re-review only if parcel boundaries are not proposed to be changed. If, for instance, an owner proposed to divide a 15-acre parcel with a previous approval into three separate parcels, the previously approved facilities would be subject to re-review, even if the facilities were operating correctly and were not affected by the proposed change. Because re-review is not necessary in such situations, the department proposes to exclude all previously approved facilities from re-review, so long as the applicant can demonstrate that they are not proposed to be changed, are not affected by a proposed change to another facility, and meet the conditions of their approval and are operating properly. Sections (2) through (6) provide the procedures to seek approval of facilities that deviate from the conditions of approval. In (3), the department proposes to simplify the rewrite procedures by clarifying that a rewrite application must be submitted subject to the same requirements as a new subdivision. In (4), the department proposes to better define the procedures for gaining approval through a revised lot layout. In (5), the department proposes a new procedure for gaining approval of minor deviations, which are more appropriately handled at the time of septic permitting. In (6), the department proposes to adopt the requirement a notification of change form be submitted to the department for deviations under 76-4-130(2), MCA, which is necessary for the department recordkeeping.
17.36.116 CERTIFICATION OF LOCAL DEPARTMENT OR BOARD OF HEALTH AS THE REVIEWING AUTHORITY (1) A local department or board of health, if it requests certification, must be certified as the reviewing authority within the scope of 76-4-104(3), MCA, if the following requirements are met and the sanitarian or engineer is qualified as described in (a) remains the same. (2) The local department or board of health is required, pursuant to a written contract, to review subdivision applications according to the requirements of Title 76, chapter 4, MCA, and this chapter. (a) remains the same. (b) have a minimum of one year's experience performing subdivision review under the direct supervision of the department or of a (c) for individuals previously (3) remains the same, but is renumbered (4). (a) within the (b) within the (i) through (c) remain the same. (d) (4) remains the same, but is renumbered (5).
AUTH: 76-4-104, MCA
REASON: The proposed amendment to ARM 17.36.116 would provide wording and organizational improvements that remove unnecessary language that is already provided in statute and rule without any substantive changes.
17.36.310 STORM DRAINAGE (1) remains the same. (2) Storm drainage plans must be prepared by a professional engineer (a) remains the same. (b) a lot proposed (3) Storm drainage plans that are required to be designed by a professional engineer under (2) must meet the requirements in ARM 17.36.121 except for the following: (a) a three-year expiring approval in ARM 17.36.121 does not apply; (b) certification and as-built drawing requirements listed in ARM 17.36.121(2) through (4) do not apply for retention ponds for residential lots, designed solely for, and located on, the lot where the additional runoff is generated; and (c) certification and as-built drawing requirements listed in ARM 17.36.121(2) through (4) are required for storm water facilities that treat additional runoff generated on 2 or more lots. (3) and (4) remain the same, but are renumbered (4) and (5). (a) subdivisions located entirely within a first-class or second-class municipality, as described in 7-1-4111, MCA, or within a Municipal Separate Storm Sewer System (MS4) general permit area, as defined in ARM 17.30.1102, if: (a) and (b) remain the same but are renumbered (i) and (ii). (b) lots over 5 acres in size if the following conditions are met: (i) the proposed impervious area on the lot will be less than 5% of the lot area, including easements and right-of ways; (ii) the proposed development will include best management practices to prevent pollution of state waters and reduce erosion and sedimentation; and (iii) the applicant must provide information demonstrating the subject parcels qualify for the criteria in (i) and (ii). (7) through (9) remain the same, but are renumbered (8) through (10).
AUTH: 76-4-104, MCA
REASON: The department proposes modifying the requirements for professional engineers for storm water designs. Currently, a professional engineer is required for applications that contain six or more lots or for lots proposed for use other than a single living unit with greater than 25 percent impervious area. The department proposes to maintain the six or more lot requirement but to remove the single living unit requirement, thus considering only the amount of impervious area instead of the use of the property. The department added the requirement for storm water plans to be prepared by a professional engineer in 2002, for uses other than a single family dwelling. The department has consistently maintained commercial use or more than one single living unit as a condition requiring the services of a professional engineer. The department received comments in response to MAR Notice No. 17-392 regarding the 2018 amendments to this rule, in which the commenter pointed out that a single living unit can have as much or more impervious surface than a duplex. At the time, the department maintained the rule in its current form, concluding that additional living units would have additional needs for parking and other impervious areas. Experience in administering this rule has led the department to reconsider the commercial use and single living unit requirements in this rule. In reviewing storm water plans, the department has observed that the amount of impervious surface drives storm water design complexity more than the type of land use. If additional parking areas are shown in relation to a duplex, but the total impervious area is still under 25 percent, the proposal is not necessarily more complex. Also, subdivision submittals proposing duplexes or additional dwelling units have greatly expanded since 2002, and these submittals are unnecessarily detailed for those submittals with less than 25 percent impervious surface and fewer than 6 lots. In (3), the department proposes changes to the requirements for certifications and as-builts for storm water designs. Currently, these requirements are the same as those for P.E.-designed water and wastewater facilities. The department now proposes to remove the requirement that P.E. designs for storm water designs expire after three years. This was originally adopted to align with the time requirements for water and wastewater facilities. This change is based on experience administering the existing storm water requirements, as the department has observed that storm water management is typically not prone to changes over time. For example, a retention or detention pond designed for a set precipitation or runoff event would have the same or very similar requirements today as it would five or ten years from now. The department also proposes removing the certification and as-built requirements for storm water facilities that are designed solely for, and are located entirely on, the lot where the additional runoff is generated. Certification and as-builts would still be required for storm water facilities that are designed to manage storm water from more than one lot. Examples of such facilities are retention/detention facilities serving multiple lots, roadside ditches, and conveyance structures. For instance, if a subdivision includes eight lots each with a retention pond, a road with roadside ditches, and a shared retention pond for the storm water runoff from the road, the department would require the applicant to submit certification and as-builts for the shared storm water facilities: roadside ditches and the shared retention pond for the road, but not the individual residential retention ponds. These changes are necessary because they better account for the real-world timeline for such development. Lots are often sold at staggered intervals and storm water facilities are typically not installed until the lots are sold. In (6), the department proposes to include a new exemption in (b) from the storm water design requirements of this section if a lot is 5 acres or larger and has less than 5% impervious area as allowed in the 2021 amendments to 76-4-104(6)(e), MCA. The qualifying criteria proposed in the rule is necessary to reduce impacts of development on adjacent properties and best management practices to help protect high quality surface waters from contamination. In (7), the department proposes to update the required documentation when work is proposed within a delineated floodplain. The current language of the rule requires documentation to be provided showing that a floodplain permit approval has been obtained. The proposed language would allow specific documentation from the floodplain coordinator indicating that a permit could be obtained. Floodplain permits expire, and need to be in place at the time of construction. However, if other approvals or construction delays happen, the applicant may need to renew the floodplain permit before construction begins.
17.36.320 SEWAGE SYSTEMS: DESIGN AND CONSTRUCTION (1) remains the same. (2) Multiple-user systems with design flows greater than or equal to 2500 gallons per day must be designed by a professional engineer and are subject to the requirements in (3) Subsurface wastewater treatment systems must comply with ARM Title 17, chapter 36, subchapter 3, and Circular DEQ-4. (a) The applicant must provide the following minimum information for wastewater submittals: (i) site evaluation information, including topography, soil profile descriptions, percolation tests if required, and other pertinent soil information for each proposed drainfield, and seasonal high ground water information; (ii) drainfield dimensions, including lateral length and lateral width based on application rate and design flow; drainfield location and type of system; and direction and percentage of slope across the treatment area or a contour map with a contour interval of at least two feet; (iii) setback information as required by ARM 17.36.323; and (iv) criteria necessary to make a non-degradation significance determination. (b) Additional design details showing compliance with DEQ-4 will be required by the reviewing authority if: (i) the proposed wastewater system is multiple-user or public; (ii) the discharge is not residential strength; (iii) the local health department does not issue septic permits for parcels reviewed under Title 76, chapter 4, MCA; or (iv) the site will require strict adherence to the lot layout at the time of installation, as determined by the reviewing authority. (a) at least six feet of natural soil must exist between the infiltrative surface or the liner of a lined system and a limiting layer on a slope of greater than 15 percent; and (b) for elevated sand mounds constructed in accordance with Department Circular DEQ 4, the depth of the key may be included as part of the separation distance between the infiltrative surface and a limiting layer. (4) remains the same, but is renumbered (5).
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes significant changes to the level of design detail that must be submitted to the reviewing authority for septic system reviews. Because septic systems are also subject to county-level septic permitting requirements, the proposed changes focus on those items that must be reviewed by the reviewing authority before construction and to define those requirements that are better addressed by local permitting authorities at the time of septic permitting. The items proposed in (3)(a) would typically provide enough information at the time of COSA review to ensure that a system meeting the requirements of DEQ-4 could be installed on a parcel while still meeting setback and non-degradation requirements intended to protect state waters and provide consumer protection for landowners. Design details for pressure dosing and septic tanks may be different based on the location of buildings on the property and are better addressed by local counties at the time of septic permitting, which may be many years after the COSA is issued. The department proposes to add (3)(b) to identify situations when additional design information beyond the minimum requirements in (3)(a) may be requested to ensure that a system meeting the requirements of DEQ-4 can be constructed on the lot. In these situations, additional protection is needed and facilities may need to be installed in nearly exact locations to meet the requirements listed in the COSA. Section (2) would be amended to update the reference rule number for systems requiring design by a professional engineer to align with that proposed rule transfer. Section (3) includes language regarding information needed to evaluate subsurface wastewater treatment systems transferred from ARM 17.36.103(1)(i) because this would be a more appropriate location for those requirements. In (4), the department proposes to strike the general requirement for 6 feet of soil on a slope greater than 15 percent and specifically describe the requirement in (4)(a) in order to ensure adequate separation. Section (4)(b) is proposed to allow use of the key fill material, which is adequate for use as part of the 4 foot separation to groundwater.
17.36.322 SEWAGE SYSTEMS: SITING (1) through (4) remain the same. (5) Pursuant to 76-4-104(6)(i), MCA, a proposed drainfield mixing zone must meet the requirements of ARM 17.36.122(6) (6) and (7) remain the same.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to transfer the mixing zones and subdivision boundaries to ARM 17.36.122 for the reasons described in the General Reason Statement.
17.36.323 SETBACKS (1) Minimum setback distances, in feet, shown in Table 2 of this rule must be maintained, except as provided in the table footnotes or as allowed through a deviation granted under ARM Title 17, chapter 38, subchapter 1. The setbacks in this rule are not applicable to gray water irrigation systems that meet the setbacks and other requirements of ARM 17.36.319.
TABLE 2 SETBACK DISTANCES (in feet)
(1) Sealed components include holding tanks, sealed pit privies, raw wastewater pumping stations, (2) Other components include the components addressed in Department Circular DEQ-4, Chapter 7, except those components completely contained within a sealed vessel. (3) through (12) remain the same. (13) A waiver may be granted by the department. (14) After consultation with the local health department, a waiver may be granted by the department, pursuant to ARM 17.36.601. (a) demonstrate that the surface water or spring seasonally high water level is at least 100-foot horizontal distance from the drainfield; (b) demonstrate that the bottom of the drainfield will be at least two feet above the maximum 100-year flood elevation; and (c) provide any required approval(s) from the local floodplain coordinator. (15) and (16) remain the same. (17) A lesser setback may be allowed in accordance with ARM 17.30.1702.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to define sealed components in footnote (1) to include advanced treatment units located within a sealed vessel to provide more flexibility for applicants while maintaining an equivalent level of protection in floodplain areas. This section also proposes specific requirements to ensure that vents would be located higher than the 100-year base flood elevation. The department proposes removing advanced treatment components located within a sealed vessel from the definition of "other Components" in (2) because they would be included in the definition of sealed components. The current reference to all systems included in Chapter 7 of Circular DEQ-4 includes all advanced wastewater treatment systems. This would still apply to systems such as open-top recirculating sand filters in unsealed vessels that would be susceptible to impact from reduced setbacks to floodplains and surface water. Some systems that would meet the definition of a system in Chapter 7 of DEQ-4 are constructed to be totally contained within a septic tank, or similar sealed vessel. This amended requirement would be consistent with the current requirement which considers septic tanks a sealed component, while maintaining an equivalent level of protection in floodplain areas. The department proposes to reorganize the waiver requirements in (13) and (14) to clarify that waiver requirements in those footnotes are threshold requirements and that the waiver criteria of ARM 17.36.601 also must be met when a waiver is requested for the separation between drainfields/soil absorption systems and surface waters and floodplains. The department also proposes adding footnote (17) along with the lagoon setback added to Table 2 to reference the allowances for lesser setbacks between wells and lagoons in ARM 17.30.1702.
17.36.327 SEWAGE SYSTEMS: EXISTING SYSTEMS (1) The provisions of (2) through (5) apply only to existing non-public sewage systems in proposed subdivisions. Facilities previously approved under Title 76, chapter 4, MCA, must be reviewed in accordance with ARM 17.36.112. Public sewage supply systems must meet the requirements of Title 75, chapter 6, MCA, and rules promulgated thereunder. (2) through (5) remain the same.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes adding a reference to ARM 17.36.112 to indicate the requirements that pertain to previously approved facilities in ARM 17.36.327(1).
17.36.340 LOT SIZES (1) remains the same. (2) Subject to (4), each proposed new subdivision lot, area proposed for condominiums, or area proposed for permanent multiple spaces for recreational camping vehicles or mobile homes, must be of sufficient size to satisfy all of the following criteria: (a) remains the same. (b) drainfield mixing zones must be located in compliance with (c) well isolation zones must be located in compliance with (d) remains the same. (3) For lots created before July 1, 1973, and for which sanitary restrictions are proposed to be lifted, the requirements of (2)(a) and (d) apply, subject to the provisions of (4) remains the same.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to update references to reflect organizational changes in the referenced rules.
17.36.914 WASTEWATER TREATMENT SYSTEMS - TECHNICAL REQUIREMENT (1) remains the same. (2) Department Circular DEQ-4, (3) through (7) remain the same.
AUTH: 75-5-201, MCA IMP: 75-5-305, MCA
REASON: The proposed adoption of the 2023 edition of DEQ-4 is necessary to ensure consistency between department subdivision regulations and local septic permitting requirements.
17.38.101 PLANS FOR PUBLIC WATER SUPPLY OR PUBLIC SEWAGE SYSTEM (1) through (20)(b) remain the same. (c) Department Circular DEQ-3, (d) Department Circular DEQ-4, (e) through (21) remain the same.
REASON: The proposed adoption of the 2023 editions of DEQ-3 and DEQ-4 is necessary to ensure that all sections of the department use the same, updated edition of the circular.
AUTH: 75-6-104, MCA IMP: 75-6-104, 75-6-112, 75-6-121, MCA
8. The rules proposed to be repealed are as follows.
17.36.330 WATER SUPPLY SYSTEMS--GENERAL
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to repeal ARM 17.36.330(1) and transfer the requirements for applicants to demonstrate adequate water quality and quantity currently presented in this section to sections 1.3.2 of DEQ-20. This is not a substantive change, except that the department proposes to remove ARM 17.36.330(1)(b)(iii) because the rule is redundant. The requirements for public water systems are set out in Circular DEQ-1 and Circular DEQ-3. The department proposes to repeal ARM 17.36.330(2) and transfer the requirements to section 1.4.2.a of Circular DEQ-20. In doing so, the department proposes to require only contamination sources within 100 feet of the water source to be shown on the lot layout for increased legibility of such lot layouts. Contamination sources within 500 feet of the water source would still have to be addressed in the design report, as provided in section 1.3.1.e of proposed Circular DEQ-20. The department proposes to transfer ARM 17.36.330(3) to Standard 1.4.2(f) of DEQ-20. This is not a substantive change. The department proposes to repeal ARM 17.36.330(4) and transfer those requirements to section 1.3.2 of Circular DEQ-20, without substantive change. The department proposes to transfer ARM 17.36.330(5) to Standard 1.4.2(b), 1.4.2(c) of DEQ-20 with no substantive change. The department proposes to transfer a portion of ARM 17.36.330(5) to ARM 17.36.122(4) as discussed in the reason statement for that rule.
17.36.331 WATER SUPPLY SYSTEMS: WATER QUALITY
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to repeal ARM 17.36.331. The requirements are currently listed in ARM 17.36.331(1)(a) through (e) are proposed to be moved to proposed new Department Circular DEQ-20, Standards 1.3.3,1.4.1, 2.1.2, 2.1.3 3.1.2, and 1.4.2(e), respectively, with substantive changes as outlined in this reason statement. The department proposes to move ARM 17.36.331(1)(f) to Standard 1.4.1 of DEQ-20. The rule requires that a surface water or ground water source under the direct influence of surface water, as described in Department Circular PWS-5, may not be used as a water source for a non-public system. The department proposes to repeal ARM 17.36.331(2) because the rule is redundant. The requirements for public water systems are set out in Circular DEQ-1 and DEQ-3.
17.36.332 WATER SUPPLY SYSTEMS: WATER QUANTITY AND DEPENDABILITY
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes repealing ARM 17.36.332(1)(a) and (b) and transferring those requirements to proposed Standard 2.1.1 of DEQ-20, with changes as described in the reason statement for that circular. The department proposes to repeal ARM 17.36.332(1)(c), remove the reference to multiple-user systems in DEQ-3, and list those requirements in Chapter 3 of DEQ-20. The department proposes to repeal ARM 17.36.332(1)(d). The rule is redundant. The requirements for public water systems are set out in Circular DEQ-1 and 3. The department proposes to repeal ARM 17.36.332(2)(a), (b), (c), (d) and list those requirements in Standard 2.1.1(a)(vi) of DEQ-20 for individual and shared systems without substantive changes. The department proposes to repeal ARM 17.36.332(3) and list those requirements in Standard 2.1.1(b) of DEQ-20 for individual and shared systems without substantive changes. The department proposes to repeal ARM 17.36.332(4) and list those requirements in Standard 1.3.2 of DEQ-20 for individual and shared systems. without substantive changes. The department proposes to repeal ARM 17.36.332(5) and list those requirements without substantive changes in Standard 2.1.1(c) of DEQ-20 for individual and shared systems. The department proposes to repeal ARM 17.36.332(6) and list those requirements with substantive changes in Standard 1.2 of DEQ-20 for individual and shared systems. The department proposes to repeal ARM 17.36.332(7) and list those requirements in Standard 1.3.2 of DEQ-20 for individual and shared systems without substantive changes. The department proposes to repeal ARM 17.36.332(8) and list those requirements in Standard 1.3.2 of DEQ-20 without substantive changes. The department proposes to repeal ARM 17.36.332(9) because the rule is redundant with proposed ARM 17.36.103(1)(n) and (o).
17.36.333 WATER SUPPLY SYSTEMS: DESIGN AND CONSTRUCTION
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes repealing ARM 17.36.333(1)(a) and listing those requirements in Standard 2.1.3 of DEQ-20 for individual and shared systems without substantive changes. The department proposes to repeal ARM 17.36.333(1)(b) and list those requirements in Standard 3.3 of DEQ-20 for multiple-user water systems without substantive changes. The department proposes to repeal ARM 17.36.333(1)(b)(i) and list those requirements in Standard 1.5 of DEQ-20 without substantive changes. The department proposes to repeal ARM 17.36.333(1)(b)(ii) and list those requirements in Standard 3.1 of DEQ-20 for multiple-user water systems. Proposed changes to those requirements are discussed in the reason statement for that circular. The department proposes to repeal ARM 17.36.333(1)(c) and list those requirements in Standard 2.1.3 of DEQ-20 for individual and shared systems without substantive changes. The department proposes that ARM 17.36.333(2) will be transferred to NEW RULE I.
17.36.334 WATER SUPPLY SYSTEMS: OPERATION AND MAINTENANCE, OWNERSHIP, EASEMENTS, AND AGREEMENTS
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to repeal ARM 17.36.334 and transfer the procedural requirements for operation and maintenance, ownership, and easements to ARM 17.36.122. The department also proposes to repeal ARM 17.36.334(1) and list those requirements in Standard 1.3.5 of DEQ-20. The department also proposes to repeal ARM 17.36.334(2). This rule is already covered in DEQ-1 for public systems. The department also proposes to repeal ARM 17.36.334(3) and list those requirements in Standard 3.1 of DEQ-20. The department also proposes to transfer ARM 17.36.334(4) to ARM 17.36.122. The department additionally proposes to repeal ARM 17.36.334(5) and list those requirements in Standard 1.3.4 of DEQ-20.
17.36.335 WATER SUPPLY SYSTEMS: EXISTING SYSTEMS
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to repeal ARM 17.36.335 and transfer those requirements to Standard 1.6 of DEQ-20. Substantive changes are discussed in the reason statement for that circular.
17.36.336 ALTERNATE WATER SUPPLY SYSTEMS
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: The department proposes to repeal ARM 17.36.336 and list those requirements in Standard 1.7 of Circular DEQ-20 with no substantive changes. This proposed section includes criteria or alternate water supply systems currently listed in ARM 17.36.336, except that ARM 17.36.336(2) is deleted. Proof that a well is not an available source is no longer required. Wells are the preferred source in terms of cost and convenience. Experience in administering this rule has shown that applicants generally do not request alternate water supplies unless well sources are not feasible.
9. The proposed changes to Circular DEQ-3 are as follows:
Circular DEQ-3
REASON: The department proposes to change the title of the proposed version of Circular DEQ-3 from "small water systems" to "non-community public water systems" as only standards for non-community public water supply systems would be addressed in the proposed version of Circular DEQ-3. This title change would make it easier for applicants to identify what type of systems are addressed in the proposed version of Circular DEQ-3.
Circular DEQ-3: 1.0 GENERAL All reports, final plans, and specifications must be submitted at least 60 days prior to the date on which action by MDEQ is desired. The term "MDEQ," as used in this circular, refers to the Montana Department of Environmental Quality or a delegated division of local government. Environmental assessments and permits for construction, to take water, for waste discharges, for stream crossings, etc., may be required from other federal, state, or local agencies. No approval for construction can be issued until final, complete, and detailed plans and specifications have been submitted to MDEQ and found to be satisfactory. Three copies of the final plans and specifications must be submitted. An approved set will be returned to the applicant. Documents submitted for formal approval must include, but are not limited to, the following: (a) through (f) remain the same. (g) (h) through (i) remain the same.
REASON: The department proposes removing references to public water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted.
Circular DEQ-3: 3.0 GENERAL In selecting the source of water to be developed, the designer must demonstrate, to the satisfaction of MDEQ, that an adequate quantity of water will be available and that the water delivered to the consumers meet the current requirements of MDEQ. Approval of plans and specifications under this Circular is not a determination that a source is ground water for purposes of PWS-5 or the Surface Water Treatment Rule. Regardless of plan and specification approval, all sources must be evaluated by the Department pursuant to the requirements of PWS-5.
REASON: This change was added to update language to reflect the requirements in recently revised Department Circular PWS-5 and matches language recently updated in section 3.2.2 of DEQ-1.
Circular DEQ-3: 3.1 SOURCE DEVELOPMENT SURFACE WATER Surface water and ground water under direct influence of surface water (GUDISW) sources must comply with the applicable sections of Department Circular DEQ-1, Standards for Water Works, including Section 3.1.
REASON: This proposed change clarifies both surface water and ground water under the influence of surface water must comply with the applicable sections of DEQ-1. This is not a substantive change.
Circular DEQ-3: 3.2 GROUND WATER A ground water source includes all water from dug, drilled, bored, or driven wells and infiltration lines determined to be not groundwater under the direct influence of surface water. Prior to construction of a well
REASON: The proposed change would be added to provide specificity to the requirement and would not be a substantive change. The department proposes removing references to public water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted.
Circular DEQ-3: 3.2.2.2 PHYSICAL AND CHEMICAL QUALITY a. Every new, modified, or reconditioned ground water source must be examined for applicable physical and chemical characteristics by tests of representative samples in laboratories certified by the Department of Public Health and Human Services, with the results reported to MDEQ. 1. Testing must include nitrate/nitrite and total dissolved solids or conductivity for (2) through (3) remain the same.
REASON: The department proposes removing references to multiple-user water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted.
Circular DEQ-3: 3.2.4.3 GROUND WATER TESTING AND RECORDS Geological data must be determined in accordance with ARM 36.21.667. A copy of the well log must be submitted to MDEQ.
REASON: The department proposes removing references to public water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted.
Circular DEQ-3: 3.2.5.1 GENERAL WELL CONSTRUCTION Minimum protected depths: (a) through (c) remains the same. (d) Microbial treatment required under (e) remains the same.
REASON: The department proposes removing references to public water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted. The change in (d) corrects a typographical error in the current edition of Circular DEQ-3.
Circular DEQ-3: 3.2.5.5 GROUTING REQUIREMENTS
(1) remains the same, but is renumbered (a). (2) remains the same, but is renumbered (b). (2)(a) through (2)(e) remain the same, but are renumbered (1) through (5).
REASON: The department proposes removing references to public water supplies and multiple-user water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted. In this section, requirements for multiple-user systems are stricken and would be transferred to proposed section 3.3 of new Department Circular DEQ-20.
Circular DEQ-3: 4.0 GENERAL The need for and design of treatment processes and devices will depend on evaluation of the nature and quality of the water to be treated and the desired quality of the finished water. In accordance with ARM 17.38.101, treatment processes or equipment used for compliance with Maximum Contaminant Levels (MCL) or for disinfection of public water systems are required to be designed by a registered professional engineer. Treatment processes for noncommunity systems installed for reasons other than MCL compliance or disinfection are not required to be designed by a professional engineer if the following conditions are met: (a) chemicals must meet NSF/ANSI Standard 60; (b) water contact materials or equipment components must meet appropriate ANSI/AWWA or NSF/ANSI standards (c) remains the same.
REASON: The department proposes to amend section 4.0(a) and (b) to allow appropriate NSF/ANSI standards rather than just NSF Standard 60. There are several NSF/ANSI standards applicable to water contact or drinking water system components. The proposed language would allow additional appropriate NSF/ANSI standards to be utilized without submitting deviations to the department. This proposed change would reduce the department time reviewing a deviation and the applicant time and fees associated with submitting a deviation.
Circular DEQ-3: 4.1.3 CHLORINATOR CAPACITY The chlorinator capacity must be able to maintain the minimum required chlorine residual in the water, as estimated under Section 4.
REASON: The department proposes to provide the corrected reference to Section 4.1.2 instead of 4.3.
Circular DEQ-3: 4.4 WATER AND ICE VENDING MACHINES This standard applies only to water or ice vending machines that are regulated as transient non-community consecutive connections. Applicants seeking approval for a water or ice vending machine under this chapter must submit plans and specifications showing the treatment train and components, as provided in Standard 4.4.1, and an operation and maintenance manual, as provided in Standard 4.4.2. Applicants seeking approval for additional locations of previously approved machines must submit the information required by Standard 4.4.3.
REASON: The department proposes to add new Standards to section 4.4 of the proposed version of Circular DEQ-3 for water and ice vending machines that are regulated as transient non-community consecutive connections. These water and ice vending machines obtain water as a consecutive connection from an approved Public Water System (PWS). Therefore, they receive water that meets public health standards. Water and ice vending machines are currently reviewed under Circular DEQ-1. A DEQ-1 review for this type of machine is unduly detailed and usually requires several deviations. The addition of section 4.4 to the proposed version of Circular DEQ-3 would provide design standards applicable for water and ice vending machines to ensure the water received from a PWS, meeting public health standards, is not contaminated prior to consumption by the public. For example, the proposed standard requires machines to receive water from an approved PWS, comply with National Automatic Merchandising Association (NAMA) performance standards by providing a NAMA certification letter, allow access for cleaning, limit lead exposure, be constructed of corrosion resistant materials, and disinfect water prior to dispensing.
Circular DEQ-3: 4.4.1 STANDARDS FOR WATER AND ICE VENDING MACHINES Water and ice vending machines must comply with the following requirements: (a) The machine must receive water from an approved public water supply system that is in compliance with the requirements of Title 17, chapter 38, ARM. (b) The machine must comply with the construction and performance standards established by the National Automatic Merchandising Association (NAMA), as demonstrated in a certification letter from NAMA. (c) The machine must be designed, constructed, and located to allow easy cleaning and maintenance of all exterior and interior surfaces. The machine must be located in an area that is maintained in a clean condition. (d) All water contact parts and surfaces must be constructed of corrosive resistant materials capable of withstanding repeated cleaning and sanitizing treatment. (e) No solders or flux containing more than 0.2 percent lead or any pipe fittings containing more than 8 percent lead may be used. (f) All water processed through a water or ice vending machine must be disinfected as a last treatment step before being dispensed. Machines using ultraviolet (UV) disinfection must be exposed to a minimum dosage of 16,000 µWs/cm2 UV energy at 254 nm. (g) Fees will be determined at an hourly rate per ARM 17.38.106(3).
REASON: These requirements reflect current practice with the review of water and ice vending machines with requirements spelled out here to reduce the number of deviations associated with the current reviews under DEQ-1.
Circular DEQ-3: 4.4.2 WATER AND ICE VENDING MACHINE OPERATION AND MAINTENANCE Applicants for proposed water and ice vending machines must submit documentation describing how the machines would be operated and maintained. Such documentation must show that the proposed machine would be cleaned, serviced, and sanitized in accordance with the manufacturer's specifications; that inspections and service visits would be conducted at least once per month; and that equipment changeout (e.g., filter changes, UV lamp replacements, etc.) would be conducted at intervals sufficient to ensure that machine operates as designed and approved.
REASON: Proposed section 4.4.2 includes standards for operation and maintenance documentation and required inspection schedules for water and ice vending machines aimed at reducing potential water contamination at the machine.
Circular DEQ-3: 4.4.3 ADDITIONAL MACHINES AT NEW LOCATIONS An applicant that has received approval under 4.4.1 and 4.4.2 above may request approval for additional machines in different locations under the following circumstances: (a) the request for approval must be made within 3 years of the initial approval. (b) the additional machines at different locations must be the same as the machines in the initial approval. (c) fees must be included for one hour of time provided per ARM 17.38.106(3). Should the review exceed one hour of time, the fee will increase in accordance with the hourly rate stated in ARM 17.38.106(3). (d) the applicant must provide a certification letter stating that the vending machine has been installed in substantial accordance with the plans and specifications approved by the department and there are no deviations from the design standards other than those previously approved by the department pursuant to ARM 17.38.101. (e) no additional machines may operate until a certification letter and a copy of bacteriological results are submitted to the Department.
REASON: Proposed section 4.4.3 provides a pathway for an applicant to request approval for additional water and ice vending machines in different locations. This proposed standard is designed to ensure public health standards while reducing the unduly detailed review under DEQ-1 requiring multiple deviations. Reduction of deviations would save the department time reviewing a deviation and the applicant time and fees associated with submitting a deviation.
Circular DEQ-3: 5.0 GENERAL In accordance with ARM 17.38.101, treatment processes or equipment used for compliance with Maximum Contaminant Levels (MCL) or for disinfection of public water systems are required to be designed by a registered professional engineer. Treatment processes for noncommunity systems installed for reasons other than MCL compliance or disinfection are not required to be designed by a professional engineer if the following conditions are met: (a) chemicals must meet NSF/ANSI Standard 60; (b) water contact or equipment components must meet appropriate NSF/ANSI standards (c) remains the same.
REASON: The department proposes to amend section 5.0.b to allow appropriate NSF/ANSI standards rather than just NSF Standard 60. There are several NSF/ANSI standards applicable to water contact or drinking water system components. The proposed language would allow additional appropriate NSF/ANSI standards to be utilized without submitting deviations to the department. This proposed change would reduce the department time reviewing a deviation and the applicant time and fees associated with submitting a deviation.
Circular DEQ-3: 6.2 PUMPS
REASON: The department proposes to improve the wording of section 6.2 regarding pump requirements. These changes are proposed because the intent of this section is for the system to meet maximum daily demand (MDD) with the largest fire pump out of service and meet the MDD plus fire flow with all pumps in service. The proposed changes aim to explain that the department does not require two fire pumps.
Circular DEQ-3: 8.5 CROSS-CONNECTIONS AND INTERCONNECTIONS No unprotected cross-connections may exist between the distribution system and any pipes, pumps, hydrants, or tanks whereby unsafe water or other contaminating materials may be discharged or drawn into the system. Cross-connections must be eliminated in conformance with ARM Title 17, chapter 38, subchapter 3
REASON: The department proposes removing references to public water supplies in the proposed version of Circular DEQ-3 where the term is used to differentiate between multiple-user systems and public water supplies, since that differentiation would not be necessary if the proposed changes to DEQ-3 and DEQ-20 were adopted.
10. The proposed changes to Circular DEQ-4 are as follows:
DEQ-4: MONTANA STANDARDS FOR SUBSURFACE WASTEWATER SYSTEMS
Circular DEQ-4 Foreword
These standards, based on demonstrated technology, set forth requirements for the design and preparation of plans and specifications for subsurface wastewater treatment systems.
Users of these standards need to be aware that subsurface wastewater treatment systems are considered by the Environmental Protection Agency to be Class V injection wells and may require associated permits.
These standards are a revision of Department of Environmental Quality (DEQ) Circulars WQB-4, WQB-5, and WQB-6, 1992 Editions, and Circular DEQ-4, 2000, 2002, 2004,
REASON: Foreword updated to reflect this edition.
Circular DEQ-4: 1.1.1. GENERAL These minimum standards apply to all subsurface wastewater treatment systems in Montana. In some cases, a reviewing authority (other than the Department of Environmental Quality) may have requirements that are more stringent than those set out in this Circular. Design details, as described in this Circular, are required for all multiple-user and public wastewater treatment systems. The information required for individual and shared wastewater treatment systems is found in ARM 17.36.320(3).
The term "reviewing authority," as used in these standards, refers to the Montana Department of Environmental Quality as referenced in the Sanitation in Subdivisions Act, Public Water Supply Act or Water Quality Act. The term "reviewing authority" can also be a division of local government delegated to review public wastewater systems pursuant to Administrative Rules of Montana (ARM) 17.38.102, a unit of local government that has adopted these standards pursuant to 76-3-504, Montana Code Annotated (MCA), or a local board of health that has adopted these standards pursuant to 50-2-116, MCA. Chart 1 shows this relationship graphically.
Chart 1 remains the same except that ARM 17.36.901 would be replaced with the corrected citation for ARM 17.36.913.
REASON: This additional language in section is necessary to ensure that DEQ-4 reflects the proposed changes to ARM 17.36.320(3), which would allow certain design details to be reviewed by the local health department at the time of septic permitting.
11. The proposed repeal of Circulars in their entirety is as follows:
Circular DEQ-11 MONTANA STANDARDS FOR DEVELOPMENT OF SPRINGS FOR INDIVIDUAL AND SHARED NON-PUBLIC SYSTEMS
REASON: The department proposes repealing current Circular DEQ-11 for the reasons described in the General Reason Statement. The requirements currently listed in DEQ-11 would be incorporated into Chapter 4 of proposed DEQ-20.
Circular DEQ-17 MONTANA STANDARDS FOR CISTERNS (WATER STORAGE TANKS) FOR INDIVIDUAL NON-PUBLIC SYSTEMS
REASON: The department proposes repealing current Circular DEQ-17 for the reasons described in the General Reason Statement. The requirements currently listed in DEQ-17 would be incorporated into Chapter 5 of proposed DEQ-20.
12. The proposed adoption of new Circular DEQ-20 is as follows:
Circular DEQ-20: STANDARDS FOR NON-PUBLIC WATER SYSTEMS
REASON: The department proposes adopting new Department Circular DEQ-20 to consolidate design criteria for individual, shared, and multiple-user water systems. Requirements for such systems are currently scattered among ARM Title 17, chapter 36, subchapter 3, Department Circular DEQ-3; Department Circular DEQ-11; and Department Circular DEQ-17. The proposed new Circular DEQ-20 would consolidate those requirements in a single circular, making the requirements easier for the public to understand and faster for the department to review. The primary purpose of creating a single circular to address individual, shared, and multiple-user water systems is that these water system types are all regulated under the Sanitation in Subdivisions Act, separate from public water supply rules and circulars, and should have a common location for referencing design criteria. Consultants and sanitarians who submit or review non-public water systems will benefit from the proposal to have one reference location for this information. By consolidating those requirements in a single circular, the department also proposes, as discussed elsewhere in this notice of proposed rulemaking, to amend Circular DEQ-3 and repeal Circulars DEQ-11 and DEQ-17, as well as the following administrative rules: ARM 17.36.330, 17.36.331, 17.36.332, 17.36.333, 17.36.334, 17.36.335, and 17.36.336. Multiple-user water systems and non-community public water supplies are currently reviewed under Circular DEQ-3. Multiple-user water systems were added to Circular DEQ-3 in 2006. Experience in administering the standards for water systems listed in current Circular DEQ has led the department to propose moving multiple-user water supply standards from current Circular DEQ-3 to include them in proposed Circular DEQ-20. Multiple-user systems differ from public systems, particularly in the fact that the department has no on-going relationship with multiple-user water systems for operation, sampling, or inspection. Multiple-user water systems should be approached from the standpoint that such systems will have less operation oversight throughout the life of the infrastructure. Such systems should not be reviewed and approved with high levels of complexity and required monitoring and therefore should have separate design standards. Design criteria for multiple-user systems are provided in chapter 3 of the proposed circular. Only substantive changes from the existing regulations are discussed in paragraph form. Unless otherwise noted in this notice, the department proposes to maintain existing requirements for the same reasons those rules were initially adopted, and the department herein incorporates those previous statements of reasonable necessity.
Circular DEQ-20 Chapter 1 Application & General Standards
This proposed chapter transfers language from existing rules listed in ARM 17.36 and Circular DEQ-3 as shown in the table above. Some stylistic changes from the current rules have been made for readability. The proposed chapter also includes substantive changes as follows. Only the sections with substantive changes are itemized below.
Circular DEQ-20: 1.2 DEVIATIONS FROM STANDARDS The proposed section uses the same justification for deviations as DEQ-3 section 1.4. This proposed section does not include the deviation procedure, as listed in current Circular DEQ-3, because the procedure is not a requirement or a design standard. As proposed, the authority to allow requests for deviations from design standards, would match the criteria outlined in Circular DEQ-1 and DEQ-3.
Circular DEQ-20: 1.3.1 DESIGN REPORT The proposed section would add a design report requirement for the applicant to convey water system specifics, as currently required in ARM 17.36.103 for multiple-user water systems, in a central location. This new requirement is necessary to allow the department to more easily and efficiently locate the information needed to evaluate the water system.
Circular DEQ-20: 1.3.3 WATER QUALITY INFORMATION In this proposed section, the reference to Circular DEQ-7, Montana Numeric Water Quality Standards, currently listed in ARM 17.36.331(1)(b) would be removed. The department proposes removing the reference to DEQ-7 because it would require non-public systems to meet quality requirements for more standards than are currently required for public water supply systems.
Circular DEQ-20: 1.4.2 LOCATION Location requirements currently listed in ARM 17.36.323 would be moved to this section. Multiple-user water supply systems may be reviewed by local health departments pursuant to ARM 17.36.116. In section 1.4.2(a), the department proposes a substantive change to reflect changes to the requirement currently listed in ARM 17.36.323 that would allow a well to be drilled within an approved well drilling area. Allowing a well to be drilled within an approved well drilling area that meets all of the required setbacks would allow greater flexibility in siting wells while still maintaining the same public health protections. In section 1.4.2(e) the department also proposes a substantive change from the requirement currently listed in ARM 17.36.331(f). Section 1.4.2(e) outlines specific criteria necessary for the reviewing authority to evaluate surface water influence in wells and necessary to protect public health.
Circular DEQ-20: 1.6 EXISTING SYSTEMS Two substantive changes to existing regulations are proposed in this section. The first proposed change would allow existing wells to be evaluated based on the regulations in place at the time it was drilled, regarding grouting depth and casing seal. This change would greatly reduce the need for grouting waivers, which are nearly always approved if the grouting depth meets the rules in place at the time of construction. This change would make reviews more efficient and save the applicant the cost associated with these waivers. This change responds to concerns raised by consultants, and Department stakeholders in the Subdivision Advisory Task Force and contracted county reviewers have been in favor of this proposed change. The second proposed change would add a description of the procedure currently used by reviewing authorities to evaluate well grouting depth by using well logs.
Circular DEQ-20: 1.7 ALTERNATE WATER SUPPLY SYSTEMS This proposed section includes criteria for alternate water supply systems currently listed in ARM 17.36.336, except that ARM 17.36.336(2), which requires proof that a well is not an available source, would be deleted. Wells are the preferred source in terms of cost and convenience. Experience in administering this rule has shown that applicants generally do not request alternate water supplies unless well sources are not feasible.
Circular DEQ-20 Chapter 2 Individual and Shared Water Systems
Circular DEQ-20: 2.1.1 QUANTITY As currently adopted, quantity requirements for individual and shared wells are listed in ARM 17.36.332. Additional criteria to this proposed section would be added to allow the use of a cistern and a lower producing well without a deviation. Utilizing water storage to provide for adequate quantities of water from low flowing wells is a waiver that is often approved within the parameters listed in this proposed section. Removing the need for a deviation in this proposed section would decrease costs and make reviews more efficient, while still ensuring that users have an adequate quantity of water. This proposed change has been supported by both consultants and contracted county reviewers.
Circular DEQ-20: 2.1.2 QUALITY Two substantive changes to the existing well quality criteria in ARM 17.36.331 have been proposed. The first proposed change is that the department is providing additional specific information about evaluating surface water influence risk to implement the existing prohibition on water sources that are under the direct influence of surface water listed in ARM 17.36.331(1)(f). This would make the department's decisions more consistent and transparent. This proposed section requires surface water evaluations for individual or shared water systems with springs, irrigation galleries, and horizontal wells as a source. The second proposed change is that arsenic would be added as a new required testing parameter. Arsenic is naturally occurring chemical prevalent in groundwater throughout the state. Geological formations may contain arsenic at detectable concentrations. EPA states that health effects from chronic exposure to arsenic include are fatal and non-fatal bladder and lung cancers as well as other non-carcinogenic diseases. The economic impact of arsenic sampling would be minimal. Arsenic analysis was quoted as costing $15 per sample (July 2022). This small investment would protect public health by allowing the reviewing authority to require treatment to prevent the health effects of arsenic. This proposed change is intended to protect consumers by stating that reverse osmosis treatment for arsenic removal is required in the COSA. Also, if an individual or shared system considers expanding to become a community or non-transient non-community public system in the future, the presence of elevated arsenic levels and the need for centralized arsenic treatment for public systems would provide systems with a better idea of the costs they may be facing.
Circular DEQ-20: 2.1.3 WELL CONSTRUCTION This proposed section contains the minimum depth criteria currently in ARM 17.36.331(1)(e). ARM 17.36.331(1)(e) makes it more difficult to use an existing well in a new submittal. The department chose to allow a lesser amount of grout without a deviation if the rules in place at the time the well was drilled would have allowed for the lesser amount of grout.
Circular DEQ-20: 2.3.2. NITRATE TREATMENT This section proposes new nitrate treatment standards for individual and shared wells. Although treatment for individual and shared wells has been allowed by the department on a case by case basis, standards for nitrate treatment have not been previously specified in rule or circular. Consistent treatment guidelines would provide simplified requirements based on the standards listed in current Circular DEQ-3. These proposed nitrate treatment standards would provide flexibility to develop water sources that require treatment. Nitrate treatment would only be only be allowed in accordance with this proposed section if no other water source is available. Professional Engineer design is encouraged but not required. The department has not required the services of a professional engineer for individual and shared systems in the past, due to the lack of complexity and the expense for these small systems. There are available treatment technologies that can be used and will treat nitrate adequately for private consumption. Ion exchange and adsorptive media treatment for nitrate may not be used for non-public water systems, because improperly operated or backwashed ion exchange and adsorptive media treatment processes have the potential to release nitrate at levels exceeding background source water concentrations into the water system, causing potential for a greater health threat.
Circular DEQ-20: 2.3.3. ARSENIC TREATMENT This proposed section would add a new requirement for arsenic treatment if arsenic levels are elevated above the maximum contaminant level of 0.10 mg/L. This section would require submittal of a treatment design. A statement requiring arsenic treatment would then be placed in the COSA. The cost of reverse osmosis treatment for arsenic in a single family home is generally less than $2000, which is minimal compared to the overall cost of development. This is necessary because of the health effects posed by arsenic consumption, as discussed above in the reason statement for Section 2.1.2. The department does not expect this to impose a significant burden on applicants. For individual and shared systems, point-of-use or point-of-entry reverse osmosis systems are often installed for aesthetic treatment, and this same type of treatment will also treat for arsenic. This section is less restrictive than the nitrate treatment section because arsenic is not an acute contaminant.
Circular DEQ-20: 2.3.4. OTHER CONTAMINATION The section proposes to recommend designing treatment based on Circular DEQ-1 Point-of-Use treatment. Professional Engineer design is encouraged but not required for the reasons described under nitrate treatment.
Circular DEQ-20 Chapter 3 Multiple-User Water Systems
Circular DEQ-20: 3.1 GENERAL Much of the design criteria proposed for multiple-user water systems in proposed Chapter 3 is currently adopted in Circular DEQ-3. The department has proposed some minor changes to the requirements for design and testing of multiple-user water systems, with the addition of arsenic sampling and a shorter pump test required to show adequate quantity. Multiple-user water supply systems may be reviewed by local health departments pursuant to ARM 17.36.116. Proposed chapter 3 would be worded to refer to any reviewing authority, as well as the department, to be consulted regarding well locations for multiple-user water systems. This proposed section also includes changes to the existing requirement in ARM 17.36.333(1)(b)(ii) that multiple-user water systems be connected for greater reliability. The existing rule allows a waiver/deviation of this provision if the applicant demonstrates that interconnection of the systems is physically or economically impractical or would create an environmental or public health concern. The department proposes to remove the economic impracticality standard to make the requirement more straight forward and less subjective. Department stakeholders in the Subdivision Advisory Task Force have been supportive of this proposed change.
Circular DEQ-20: 3.2.2 WATER QUALITY This proposed section provides water quality requirements for multiple-user water supply systems. These requirements are currently in ARM 17.36.331 and DEQ-3 Section 3.2.2. The department proposes specific criteria necessary for the reviewing authority to evaluate surface water influence in wells and necessary to protect public health. The department proposes adding arsenic testing for the reasons listed under proposed section 2.1.2.
Circular DEQ-20: 3.2.4 TESTING AND RECORDS The department proposes to reduce the complexity of yield and drawdown testing for multiple-user wells currently presented in DEQ-3 Section 3.2.4. Public wells are required to provide 24 to 72 hours of testing. The proposed language for multiple-user wells limits the test at no more than 24 hours, with simplified data recording intervals. The reason for the change is to allow owners and consultants having little experience with yield and drawdown tests to be able to complete the yield and drawdown testing, which will capture the necessary information for pump selection and aquifer sustainability without requiring very specialized tools and software.
Circular DEQ-20: 3.4.6 Pressure Tanks Section 3.4.6 of proposed Circular DEQ-20 closely matches section 7.1 of the current version of Department Circular DEQ-3 for hydropneumatic pressure tank systems, with minor edits to ASME-rated tanks. The proposed language in this section would allow the use of hydropneumatic pressure tanks of any size if the hydrostatic pressure test requirements can be met. Most pressure tanks for multiple-user systems are small, often below the ASME code requirements. This change would allow for more flexibility in storage tank design for multiple-user systems.
Circular DEQ-20 Chapter 4 Development of Springs
This chapter of the proposed circular combines criteria from current Department Circular DEQ-11 (Non-public springs) and Department Circular DEQ-10 (public springs). This chapter of proposed Circular DEQ-20 proposes to add detail regarding the required submittal information that was lacking previously. If Chapter 4 of DEQ-20 is adopted as proposed, then Circular DEQ-11 would be repealed. The circular would not allow springs to be used for multiple-user water systems. Only individual and shared water systems may use such a water source. Testing and design requirements in this chapter are intended to minimize public health risks from the use of springs for water supply. However, springs still present a higher risk of contamination than a properly constructed well. Multiple-user water supply systems by definition provide water supply to a higher population than individual or shared water supply systems and present a higher risk to public health if adequate protections are not provided. Unlike public water supply systems, the department would not have a regulatory mechanism to require annual sampling or inspection of multiple-user water supply systems. Additionally, public water supply systems that utilize springs are required to provide 4-log disinfection per DEQ-10. Routine sampling to ensure proper operation of disinfection equipment would not be possible with multiple-user water supply systems. Circular DEQ-20 Chapter 5 Cisterns
The department proposes to transfer the design standards listed in current Department Circular DEQ-17, Montana Standards for Cisterns (Water Storage Tanks) For Individual Non-Public Systems, to chapter 5 of proposed Department Circular DEQ-20. The proposed chapter would be modified slightly from the DEQ-17 version, to encourage the installation of above ground cisterns in heated buildings for more consistent water quality over the life of the system. However, the option for buried, exterior installations of cisterns would remain for individual or shared water systems. If adopted, Department Circular DEQ-17 for non-public cistern design criteria would be repealed.
Circular DEQ-20: 5.1 GENERAL This section clarifies when the cistern criteria is used, compared to central storage reservoirs for multiple-user water systems, which must meet the criteria of Circular DEQ-1. ARM 17.36.336(6) currently only addresses the use of a cistern served with hauled water. For individual and shared water supply systems, cisterns are often used to provide storage when the minimum flow requirements in ARM 17.36.332(1) cannot be met. ARM 17.36.332(6) allows "adequate storage" to be used to meet peak demands but does not provide a reference to the standards that storage needs to meet. The department proposes to specify in DEQ-20 Section 5.1 that the requirements for cisterns design apply for all individual and shared systems whether using hauled water or a low-flow well. The department proposes to make the distinction between central storage reservoirs for multiple-user water systems and individual or shared cisterns that are provided water from a multiple-user well. Given the higher risk to public health if a single cistern is used to serve an entire multiple-user water supply system, the systems need to be designed in accordance with DEQ-1. This is consistent with the language proposed in DEQ-20 Section 4.7.3.
Circular DEQ-20: 5.2 PLACEMENT This section contains new recommendations to encourage above-ground storage tanks in heated structures, as such installations allow the structural and watertight integrity of the cistern to be monitored more easily than buried cisterns. This section also incorporates much of the existing placement criteria in Department Circular DEQ-17. Language was added to emphasize proper sealing of the cistern. The department proposes to include a requirement that above ground storage tanks must be installed within a heated structure to prevent freezing in the winter.
13. Copies of the proposed Circular DEQ-3, DEQ-4, and DEQ-20 may be viewed at the department's website using the following path: deq.mt.gov/water/programs/eng. Copies may also be obtained by contacting Jennifer Luparell at (406) 444-1801, or [email protected].
14. 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 the Department of Environmental Quality, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-1388; or emailed to [email protected], no later than 5:00 p.m., January 23, 2023. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
15. Aaron Pettis, attorney for the department, has been designated to preside over and conduct this hearing.
16. 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 or may be made by completing a request form at any rules hearing held by the department.
17. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
18. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsors were contacted by mail on November 7, 2022.
19. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, transfer and amendment, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Angela Colamaria /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State December 13, 2022.
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