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Montana State Environmental Review (9-MT-a)

The Montana Environmental Policy Act (MEPA) is intended to protect the state from the cumulative affect of development on nature and human health, much in the same way the National Environmental Policy Act regulates federal development projects. MEPA is a procedural statute. The law basically requires the state to consider the environmental attributes of proposed laws and that the public be informed of potential environmental impacts. MEPA balances environmental interests against private property rights free of undue government regulation.

The policy requires that the state:

  • fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
  • ensure for all Montanans' safe, healthful, productive and aesthetically and culturally pleasing surroundings;
  • attain the widest range of beneficial use of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
  • protect the right to use and enjoy private property free of undue government regulation;
  • preserve important historic, cultural, and natural aspects of our unique heritage and maintain, whenever possible, an environment that supports diversity and variety of individual choice;
  • achieve a balance between population and resource use that will permit high standards of living and a wide sharing of life's amenities; and
  • enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

See 75.1.103(2), MCA.

If the state project also triggers NEPA, Montana law allows for state and federal coordination of a single environmental review that would satisfy both MEPA and NEPA.

Montana agencies are also permitted to complete joint environmental reviews with a single lead agency. If there is a dispute over which agency should take primary responsibility for the task, the governor may resolve the dispute.

A series of agency initiated actions should undergo programmatic review in order to facilitate the efficient environmental review of the entire project, rather than forcing the agencies to undergo multiple reviews in a piecemeal fashion.

The statutory time limits under MEPA includes a 60 day limit for scoping and a 90 day limit for completing the environmental review. However limits may be extended if reasonable.

A fee charged to the applicant for all environmental reviews that cost the agency more than $2,500. Fees are only to be used for expenses associated with gathering data.

State Environmental Review Process

9-MT-a.1 - Does the agency intend to take a non-exempt/non-excluded action that may impact the human environment under MEPA?

Under ARM 17-4-607(5) the following categories need not proceed under MEPA:

  • actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review. In the

rule or programmatic review, the agency shall identify any extraordinary circumstances in which a normally excluded action requires an EA or EIS;

  • administrative actions: routine, clerical or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services, and personnel actions;
  • minor repairs, operations, or maintenance of existing equipment or facilities;
  • investigation and enforcement: data collection, inspection of facilities or enforcement of environmental standards;
  • ministerial actions: actions in which the agency exercises no discretion, but rather acts upon a given state of facts in a prescribed manner; and
  • actions that are primarily social or economic in nature and that do not otherwise affect the human environment.

When the agency determines further environmental review is not required, the agency should document the conclusion in a written record of the administrative determination.

9-MT-a.2 - No permit needed; Continue with project

If the project is excluded, there is no need to prepare an Environmental Assessment or Environmental Impact Statement.

9-MT-a.3 - Proposed Action

"Action" is defined broadly. Actions covered under MEPA includes:

  • a project, program, or activity directly undertaken by an agency;
  • a project or activity supported through contract, grant, subsidy, loan, or other form of funding assistance from the agency, either singly or in combination with one or more other state agencies; or
  • a project or activity involving the issuance of a lease, permit, license, certificate, or other entitlement for use or permission to act by the agency, either singly or in combination with other state agencies.

The agency must prepare a document thoroughly describing the proposed action in preparation of scoping.

9-MT-a.4 - Scoping

MEPA scoping is similar to NEPA scoping. Scoping is the formalized method of determining the issues relevant to the proposed action. Public participation is typically encouraged in order to assist in identifying issues. An issue is basically an environmental conflict that is identified. Scoping assists in making an initial determination of potential alternatives that may mitigate impacts while achieving the objectives of the proposed action.

Scoping assists the agency in determining the environmental complexity of the project. It will also help the agency ascertain the geographic extent of the impacts. The extent of the required environmental review will be clarified during scoping. It assists in identifying the requisite environmental studies. During scoping, the agency should have an eye toward preparing to evaluate whether the impacts will be significant and what tools will be needed to determine the significance of the project.

9-MT-a.5 - Is it clear whether or not there are significant impacts

Whenever it is unclear whether the proposed action is a major one significantly affecting the quality of the human environment, the agency should prepare an Environmental Assessment (EA). It is also permissible to prepare an EA in the event the statutory requirements do not allow sufficient time for the agency to prepare an Environmental Impact Statement (EIS). An EA is also permissible in instances that would normally warrant an EIS, but the effects are effectively mitigated.

9-MT-a.6 - Environmental Assessment (EA)

Environmental assessment means "a written analysis of a proposed action to determine whether an EIS is required or to serve one or more of the other purposes in Rule III(2).

Environmental Assessment Contents

The preparation of an EA should be proportionate to the complexity and environmental sensitivity of the proposed action. An EA should include:

  1. a description of the proposed action, including maps and graphs;
  2. a description of the benefits and purpose of the proposed action;
  3. a list of all federal, state and local agencies that have overlapping jurisdiction or environmental review responsibilities;
  4. an evaluation of the impacts (including cumulative and secondary impacts);
  5. an analysis of all alternatives;
  6. a listing and appropriate evaluation of mitigation, stipulations, and other controls enforceable by the agency or another government agency;
  7. a listing of other agencies or groups that have been contacted or contributed information;
  8. the names of persons responsible for preparation of the EA; and
  9. a finding on the need for an EIS and justifications for this decision.

9-MT-a.7 - Public notice & comment (discretionary)

Public participation is solicited throughout the MEPA process. Typically public participation is invited by:

  • informing the public when agency action is pending;
  • seeking preliminary comments on the purpose and need for the pending action (this is referred to as the "scoping" process);
  • preparing an environmental review (categorical exclusion, environmental assessment, or environmental impact statement) that describes and discloses the impacts of the proposed action and evaluates reasonable alternatives and mitigation measures;
  • requesting and evaluating public comments about the environmental review; and
  • informing the public of the final agency decision.

The public participation is intended to ensure a thorough agency decision and also to encourage accountability to the people of Montana.

Public review of an EA will vary with the complexity of the project and its anticipated environmental impacts. Any member of the public may request a copy of the EA for review. If there is a heightened level of interest in the proposed action, the agency may elect to provide meetings or hearings.

A list of completed EA's is submitted to the governor and the EQC. The final EA is forwarded to EQC.

9-MT-a.8 - Are the impacts of the proposed action significant

The MEPA Model Rules provide criteria to assist the agency in determining whether the impacts are significant. The recommended criteria includes:

  • the severity, duration, geographic extent and frequency of occurrence of the impact;
  • the probability that the impact will occur if the proposed action occurs or, conversely, the reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;
  • growth-inducing or growth inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts;
  • the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those resources or values;
  • the importance to the state and to society of each environmental resource or value that would be affected;
  • any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or a decision in principle about such future actions; and
  • potential conflict with local, state or federal laws, requirements, or formal plans.

See A Guide to the Montana Environmental Policy Act, page 10.

9-MT-a.9 - Environmental Impact Statement (EIS)

Preparation of an EIS has several steps: determining the scope of the EIS, preparation of the draft, public notice and comment, and preparation of the final environmental impact statement. Agency rules for preparation of the EIS is contained in the agency administrative rules. Generally, the agency rules follow the MEPA Model Rules.

Agencies have particular steps in articulating the scope of an EIS. First the agency must invite other affected federal state and local government agencies, tribal governments, the applicant and any potentially interested persons or groups to participate in scoping. The consultation should focus on identifying the issues related to the proposed action that will require in depth analysis in the EIS. The agency should also identify issues that need only be mentioned in the document along with the justification for not providing extensive analysis of the issue. Issues adequately addressed in prior environmental reviews should be identified but need not be extensively discussed. A summary and reference to the coverage is sufficient.

General Requirements

An EIS should be analytic rather than encyclopedic. The depth of analysis should be proportionate to the issues' significance. If a particular issue is not significant, the EIS should identify the issue and explain why no further study is warranted.

Summary for Distribution

Along with preparation of draft and final EIS's there should be a summary distributed separately. The summary should contain a brief description of the proposed action, its impacts and alternatives. The summary should also describe areas of controversy, trade-offs among the alternatives and the agency's preferred alternative.

Draft EIS Contents

  1. a description of the proposed action, including its purpose and benefits;
  2. a listing of any state, local or federal agencies that have overlapping or additional jurisdiction and a description of their responsibility for the proposed action;
  3. a description of the current environmental conditions in the area affected by the proposed action or alternatives, including maps and charts, whenever appropriate. the description must be no longer than is necessary to understand the effects of the actions and alternatives. Data analysis must be commensurate with the importance of the impact with less important material summarized, consolidated, or simply referenced;
  4. a description of the impacts on the quality of the human environment of the proposed action.

See Model Rule IX.

The draft EIS must be distributed for public comment for 30 days.

Occasionally the draft EIS is sufficient and may be adopted as the final EIS. This decision will be made based on the quality and quantity of the substantive comments received during the notice and comment period. Within 30 days of the close of the public comment period, the agency may decide to adopt the draft EIS as the final draft. If the agency opts to adopt the draft EIS, the agency must notify the governor, the Environmental Quality Council, the applicant and all commenters. The notification must be accompanied by a copy of all comments or a summary of a representative sample of comments and an explanation of why the issues raised do not warrant the preparation of a final EIS. Public notice of the proposed adoption of the draft EIS as the final EIS must be posted at least 15 days before the adoption.

Final EIS Contents

  1. a summary of major conclusions and major deviations from the draft EIS;
  2. a list of all sources of written and oral comments on the draft EIS along with the actual comments or a representative sample of comments;
  3. the agency's responses to the comments;
  4. data, information and explanations obtained subsequent to circulation of the draft; and
  5. the agency's recommendation, preferred alternative or proposed decision.

See Model Rule XI.

Final EIS Distribution

Copies should be distributed to the governor, Environmental Quality council, appropriate state and federal agencies, the applicant and any persons who submitted comments and other members of the public who request a copy.

9-MT-a.10 - Public notice & comment

The public should be encouraged to provide assistance in determining the scope of an EIS. Once the draft EIS is completed, the public should be provided a minimum of 30 days to provide comments. The agency may take the comments into consideration in revising the EIS to include responses to public concern. The final EIS should contain all public comments. Once the final EIS is prepared, the public must be given 15 days to comment on the final document.

Public hearings are addressed in Model Rule XXIII. Public hearings should be held after the draft EIS is circulated and before the final EIS is distributed. Hearings are announced in a "news release legal notice to newspapers of general circulation in the area to be affected by the proposed action." The notice should include an explanation of the type of testimony the agency desires to solicit. The threshold for holding a hearing is very low. Whenever the applicant, another agency, or 10% of the affected persons or an interested group with a membership of 25 or more requests a hearing within 20 days of the distribution of the draft EIS. When a hearing is not requested, the agency may hold informal meetings.

9-MT-a.11 - Review comments

Final EIS Distribution

Copies should be distributed to the governor, Environmental Quality council, appropriate state and federal agencies, the applicant and any persons who submitted comments and other members of the public who request a copy.

9-MT-a.12 - Record of Decision

The final administrative decision is appended to the final EA or final EIS.

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