Committee weighs bill to resolve septic ‘‘mixing zone’’ conflict between local health rules and subdivision law

The Montana House Local Government Committee on March 11 heard House Bill 180, a measure sponsored by Representative Courtney Sprunger that would grandfather legally permitted septic-system mixing zones and change permitting rules to require new septic-system mixing zones to remain inside parcel boundaries.

Sprunger told the committee the bill addresses a long-running regulatory conflict that can force property owners who legally installed drain fields to abandon or replace systems if they later divide their land. "This is a common-sense bill that will grandfather existing septic system mixing zones that were legally permitted and installed if a property owner wants to divide their property," she said.

The bill aims to reconcile two sections of Montana law. Under current practice, mixing zones reviewed under local health rules (Title 50, MCA) sometimes lack the same property-boundary requirements that apply when a parcel is reviewed under the Sanitation and Subdivision Act (Title 76, MCA). Rachel Clark, engineering bureau chief for the Department of Environmental Quality’s Water Quality Division, told the committee that the differing review tracks can leave legally approved county permits at odds with sanitation-act review when a parcel becomes subject to subdivision review.

"Mixing zones are reviewed and approved under two different laws — the local health rules in Title 50 and the Sanitation Act in Title 76," Clark said. She explained that a mixing zone can extend beyond a parcel on lots larger than 20 acres that historically were not subject to Sanitation Act review. When that lot is later split, the sanitation review can require the mixing zone to stay inside the new subdivision boundary, leaving owners facing easements or system replacement.

Engineers and consulting groups that work on DEQ submittals testified in favor of the bill. Jeff Larsen, vice president of the Montana Environmental Consultants Association and a licensed professional engineer and land surveyor, told the committee the measure will "correct the conflict in the regulations, and it'll protect legally, permanent drain fields from having to be replaced and making the citizens of Montana spend tens of thousands of dollars for something that was legally permitted." Tobias Liechti, another professional engineer and MECA member, also voiced support.

Under the bill text discussed in the hearing, mixing zones approved by counties prior to the bill’s effective date (the draft cites an October 1 effective date) would not be required to be relocated; after the effective date, local boards of health would have to ensure mixing zones remain on the property when issuing a local septic permit. Clark said DEQ and the sponsor have discussed an amendment to clarify that the 2011 sanitation-act provision was intended to apply to parcels created after that date.

Committee members asked about the scale of the problem and potential compliance effects. Clark estimated there are "probably several dozen issues" and said some owners do not submit projects to DEQ because they expect the mixing zone would not meet Sanitation Act rules. When asked whether passage would increase applications and compliance, Clark replied, "I suspect that, yes. We would have more people try to come in for Sanitation Act review when they know their mixing zones go off the property boundaries, but after the bill passage this won't be an issue anymore because they will be required to keep their mixing zones within their parcel."

Multiple committee members also raised easements as a potential remedy for landowners whose mixing zones cross parcel lines; Clark confirmed easements can satisfy the requirement, but said in practice neighbors do not always agree to grant them without compensation.

The hearing closed with the sponsor reserving the right to close and noting prior work with DEQ after a similar bill in the last session was vetoed. No formal committee vote on HB 180 was recorded in the transcript.

Ending: Committee discussion and testimony focused on reconciling permitting tracks to avoid forcing lawful septic systems to be replaced when property is divided. The sponsor and DEQ indicated they worked on language and an amendment was circulated in advance of the hearing.