85-2-124. Fees for environmental impact statements. (1) Whenever the department determines that the filing of an application or a combination of applications for a permit or approval under this chapter requires the preparation of an environmental impact statement as prescribed by the Montana Environmental Policy Act and the application or combination of applications involves the use of 4,000 or more acre-feet per year and 5.5 or more cubic feet per second of water, the applicant shall pay to the department the fee prescribed in this section. The department shall notify the applicant in writing within 90 days of receipt of a correct and complete application or a combination of applications if it determines that an environmental impact statement and fee is required.
     (2) Upon notification by the department under subsection (1), the applicant shall pay a fee based upon the estimated cost of constructing, repairing, or changing the appropriation and diversion facilities as provided in this section. The maximum fee that must be paid to the department may not exceed the fees set forth in the following declining scale: 2% of the estimated cost up to $1 million; plus 1% of the estimated cost over $1 million and up to $20 million; plus 1/2 of 1% of the estimated cost over $20 million and up to $100 million; plus 1/4 of 1% of the estimated cost over $100 million and up to $300 million; plus 1/8 of 1% of the estimated cost over $300 million. The fee must be deposited in the state special revenue fund to be used by the department only to comply with the Montana Environmental Policy Act in connection with the application or applications. Any amounts paid by the applicant but not actually expended by the department must be refunded to the applicant.
     (3) The department and the applicant may determine by agreement the estimated cost of any facility for purposes of computing the amount of the fee to be paid to the department by the applicant. The department may contract with an applicant for:
     (a) the development of information by the applicant or a third party on behalf of the department and the applicant concerning the environmental impact of any proposed activity under an application;
     (b) the division of responsibility between the department and an applicant for supervision over, control of, and payment for the development of information by the applicant or a third party on behalf of the department and the applicant under any contract;
     (c) the use or nonuse of a fee or any part of a fee paid to the department by an applicant.
     (4) Any payments made to the department or any third party by an applicant under any contract must be credited against any fee that the applicant is required to pay under this section. The department and the applicant may agree on additional credits against the fee for environmental work performed by the applicant at the applicant's own expense.
     (5) A fee as prescribed by this section may not be assessed against an applicant for a permit or approval if the applicant has also filed an application for a certificate of compliance pursuant to the Montana Major Facility Siting Act and the appropriation or use of water involved in the application or applications for permit or approval has been or will be studied by the department pursuant to that act.
     (6) This section applies to all applications, pending or filed, for which the department has not commenced writing an environmental impact statement. This section does not apply to any application if the fee for the application would not exceed $2,500.
     (7) Failure to submit the fee as required by this section voids the application or applications.
     (8) The department may in its discretion rely upon the environmental studies, investigations, reports, and assessments made by any other state agency or any person, including any applicant, in the preparation of its environmental impact statement.

     History: En. .2 by Sec. 1, Ch. 356, L. 1975; amd. Sec. 1, Ch. 117, L. 1977; R.C.M. 1947, .2; amd. Sec. 1, Ch. 277, L. 1983; amd. Sec. 4, Ch. 448, L. 1983; amd. Sec. 6, Ch. 573, L. 1985; amd. Sec. 15, Ch. 217, L. 2003.