ACTION REQUEST: HB 383 and HB 399

Please note that you may receive this message from Montana Association of Conservation Districts (MACD) and the Department of Natural Resource and Conservation (DNRC).  I am just trying to cover the bases because DNRC has a specific 310-committee mailing list.

A meeting was held Monday night with Representative Kerry White to determine the reasoning for two of his  bills affecting 310-permit processing: HB 383 and HB 399.  Representative White indicated he is not interested in micromanaging conservation districts, but he hopes to put sideboards on the jurisdictional questions CDs have in HB 399.  He agreed that his proposed definition was probably too limiting, so he thought about using something that was already in CD’s rules to help clarify the issue.  The meeting was very productive and we  reached consensus on solutions that made sense and added efficiencies. Representative White agreed to amend the two bills.  Following is a synopsis:

  • HB 383 changed the applicant appeal time from 15 to 60 days. Representative White is concerned that a non-occupant or non-resident applicant does not have sufficient time to coordinate an appeal in 15 days.  He provided an example of one individual, non-resident, that was not able to coordinate a response within the 15-day appeal window. The appeal was subsequently denied.
    • Solution: Representative White agreed to change the suggested 60 appeal time to 30.  Thirty days matches most judicial appeal time elements.  He would not agree to a more reduced appeal time.
    • Added value changes: timing was discussed with other elements of the statute and the following timeframes were modified to align with the intent of this bill.
      • The applicant under the current law, has either 5 days to appeal or 15 days to appeal, depending on whether the applicant signed an arbitration agreement when they applied for a permit. The 30-day appeal period now being proposed under this bill applies to the applicant and their right to request arbitration or pursue appeal to the courts. No changes have been made to the other team members’ appeal authority
      • Under the provisions of an emergency, once the district as issued a permit, the applicant has 30 days to appeal the district’s decision.
      • The time for an applicant to inform the district of whether or not they will commence with the project (used to line up with the old 15-day appeal) was changed to 30 days to match the recommended 30-day appeal time. However, the 15-day waiting period is still in place or can be waived if all team members agree with the supervisor’s decision.
    • These changes seem reasonable.
  • HB 399 recommended changing the definition of a Natural perennial flowing stream or stream. Representative White referred to a historical ditch for irrigation that could not be cleaned up as it had in the past because it was considered a stream.  We discussed the many different scenarios CDs use to apply the law to the varying conditions on the ground and that the flexibility was needed to make reasonable decisions. The current language in HB 399 caused concern among many conservation districts, because it was too narrow.
    • Solution: Representative White agreed to leave the current statute definition intact and not propose a change.  He agreed the language found under existing CD rules for definition of a stream was appropriate.  The definition in statute under (6) will be clarified to exclude ditches, intermittent streams, ephemeral streams, or wetlands that are not associated with the bed and banks of a stream.  The only addition to current rule is the term ephemeral, which we felt should not be a significant issue.
      • This language comes out of the CD rules, and has its basis in the CD rules and Administrative Rules of Montana.

I will be working with legislative staff to craft the two amendments.  The hearing for HB 383 is set for tomorrow, Wednesday the 13th, at 3:00 pm.  The hearing for HB 399 is set for next Monday, the 18th, at 3:00 pm.  We need all the sets of eyes on this as possible.  Please take a look at these two items and provide comment to Dan McGowan (dmcgowan@macdnet.org) by:

  • HB 383 – please respond by tomorrow at 12 noon.
  • HB 399 – please respond by Friday at 5 pm.

MACD does not have a resolution speaking to these matters and needs to rely on district input.  The testimony on these bills has a couple of options:

  1. Given the districts are not comfortable with either bill, MACD would have to testify in opposition to both.
    1. The testimony could include, however, approval with amendment if the consensus of the districts responding agree to the amendments.
    2. If the districts are not in consensus with acceptance of the amendments, MACD would have to testify in opposition to both bills.
  2. CDs also have the option to come to Helena to testify. If that is the case, I request that the CDs let me know in advance.  This option will most likely change the MACD approach to informational regarding the amendment development process.

Thanks to each and every one of you for providing input on these two important matters.  It would be nice if there was more control of the timing, but issues such as these are at the mercy of the legislative process and we can only do the best we can. Keep in mind that this is early in the process for approving this legislation, so if conservation districts have major issues with any of it, there will be time to consider those if the bills makes it to the Senate side of the aisle.

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