Subdividing DEQ

The Senate Local Government Committee heard testimony Wednesday on a bill that aims to shift much of the Department of Environmental Quality’s oversight of subdivision development to other governmental bodies. If Senate Bill 165 passes, subdivision rulemaking would be transferred to the state Board of Environmental Review, and much of the agency’s existing subdivision permitting authority would be delegated to local boards of health.

Sen. Carl Glimm, R-Columbia Falls, is sponsoring the bill. Half of its six provisions are geared toward reforming the DEQ’s rulemaking authority and permitting processes, and the other half revise specific existing regulations that deal with stormwater drainage, sanitation infrastructure and lot aggregation.

The most sweeping change proposed by SB 165 concerns regulatory ru]lemaking. If the measure passes, many of the subdivision requirements that are currently created by a DEQ rulemaking process would shift to the Board of Environmental Review, which consists of seven governor-appointed members who serve four-year terms. Gov. Greg Gianforte recently announced four appointments to that board.

More than a dozen people spoke in favor of the measure, including engineers, land surveyors, developers, individual landowners and representatives from the Montana Association of Realtors and the Montana Building Industry Association. Many of the proponents expressed exasperation with the quantity of existing regulations and frustration with the current state of affairs between subdivision applicants and the DEQ.

Jeff Larsen with the Montana Environmental Consultants Association said some of his colleagues are getting so burned out from interactions with the DEQ that they’re considering early retirement or a career change.

“In the last three to five years, the process has gotten way too arduous, way too complicated and way too expensive for my clients,” he said.

Several bill proponents said additional reviews of subdivisions that have already been approved are onerous and costly. 

“You shouldn’t have to redo what you’ve already done,” Glimm said during his bill introduction.“[DEQ] shouldn’t have another bite of the apple.”

Asked during the hearing why so many engineers and consultants have such an acrimonious relationship with the agency, DEQ Engineering Bureau Chief Kevin Smith said it’s largely due to staffing issues and a workload increase spurred by the pandemic’s impact on development in the state.

“COVID hit and we picked up an extremely large amount of work and then we lost key staff and personnel,” he said. “Our workload is such that now we have generated a lot of angst ourselves.”

Another provision in SB 165 appears to delegate more oversight of sanitation infrastructure to local health boards, a change that garnered opposition from the Montana Association of Counties, the Montana League of Cities and Towns and the Montana Environmental Health Association.

Eric Bryson with the Montana Association of Counties said passage of the bill could result in 56 different sets of county-specific regulations. He also said that “like it or not” the DEQ already has the necessary technical expertise to review applications, and suggested that the bill’s sponsor and proponents take up their concerns with the new administration.

Kelly Lynch with the Montana League of Cities and Towns said the bill could represent a “huge cost shift to our communities that require a regulated system for water and sewer.” She added that it might compel the federal Environmental Protection Agency to step in to enforce the Clean Water Act, a development she said few would welcome.

Shannon Therriault with the Montana Environmental Health Association said the bill’s language regarding local health board responsibilities relative to DEQ authority is confusing. She said she’s concerned the bill would create duplicative regulatory processes.

An email to Glimm seeking clarification on that aspect of the bill was unreturned by press time Thursday.

Of the bill’s provisions that would change specific existing regulations, the least controversial involves aggregation, or the combination of two or more lots into one.

“If you’ve got two lots and you want to make it into one lot, what difference does it make?” Glimm told the committee Wednesday. “[You] shouldn’t have to go through two reviews for that.”

Another provision would remove small subdivisions — e.g., parcels of five or fewer lots — from stormwater review. Glimm said projects of that size don’t have enough impermeable surface (roads, houses, sidewalks, etc.) to create stormwater drainage issues. 

Therriault disagreed, saying she thinks the proposal’s stormwater exemptions are too broad. She added that she supports much of the bill’s intent and agrees that subdivision review undergoes an extraneous level of scrutiny.

SB 165 would also change existing regulations that mandate increased scrutiny for changes to parcels located near a water body. Under current regulations, an additional level of review is required for changes to a septic system, for example, if it’s located within 2,640 feet, or about a half-mile, of surface water. Glimm’s proposal would reduce that distance to 500 feet. Projects that are tied into a public system like a local water or sewer district are currently exempted from that extra review and would remain so.

Several proponents voiced support for the change, but opponents questioned the reasoning behind it.

“That is a big change from the existing standards [and] nobody has testified today on the basis of that,” said Tate McMahon, a land-use planner and consultant. 

John Rundquist, an engineer and scientist who formerly served as Helena’s public works director, said the change from the current standard to 500 feet has no scientific basis.

“Groundwater hydrology is well understood relative to contaminant transport and interaction with surface waters,” he said. “Arbitrary exemptions are counterproductive relative to real resource protection.”

Rundquist added that he’s concerned that the bill could jeopardize the ecological and economic value of Montana’s rivers, streams and lakes.

“It would be a great travesty to incrementally ruin these assets for the benefit of short-term profits on rural land subdivisions,” he said.

Speaking on behalf of the Montana Smart Growth Coalition, Mary Flowers said she’s concerned that the bill as written would offer limited opportunities for the public to comment on proposed subdivisions. She added that much of the frustration developers experience with DEQ could be alleviated by addressing staffing levels at the agency.

Other bill opponents included the Montana Environmental Information Center and Citizens for a Better Flathead.

The committee did not take executive action on the measure Wednesday.