Planning a Project On or Near a Stream or River
Learn about the 310 permitting process and Montana's Conservation Districts.
2016 Winterby
Karl Christians, Conservation District Specialist, Montana Department of Natural Resources and Conservation (DNRC); Dave Martin, Public Information Specialist, DNRC; Bob Flesher, Stream Permitting Coordinator, DNRC; Don MacIntyre, Legal Counsel, DNRC; and Sunni Heikes-Knapton, Madison Watershed Coordinator, Madison Conservation District
Healthy rivers and streams are important to Montanans for their lives and livelihoods, providing fisheries, clean water, recreation, aesthetics, agriculture and livestock production, as well as municipal water supply. Streams and rivers also raise complicated management issues and one of the ways to protect their health is through the 310 permitting process.
While there are many permits that relate to activities in or around streams or rivers, The Natural Streambed and Land Preservation Act of 1975 (commonly referred to as the 310 Law) is the only permit administered by local Conservation Districts (CDs). The 310 name was derived from the 1975 Senate Bill number 310.
The bill was enacted as part of the state’s policy to protect and preserve Montana’s natural rivers and streams, as well as the lands and property immediately adjacent to them in their natural and existing state. The passage of the law placed permitting of stream-related projects within the jurisdiction of CDs, units of local government initially formed across the U.S. to address soil erosion following the Dust Bowl of the 1930s.
Today, CDs continue to encourage landowners to adopt voluntary, grassroots conservation through education and support. Conservation District boards are made up of locallyelected supervisors who volunteer their time to promote the wise use of our natural resources. This built-in connection to local landowners makes CDs a fitting entity to administer the 310 Law, providing a comprehensive, locally-based regulatory framework to protect streams and rivers in Montana with the aim of minimizing soil erosion and sedimentation.
By definition, the written consent of the supervisors (commonly referred to as a 310 permit) is needed by any private, non-governmental individual or entity for any activity that physically alters or modifies the bed or banks of a perennially-flowing stream or river. This means that any body of water that has continuous, year-round flow is covered by the 310 Law, and the land area the law covers goes from the bottom of the stream channel up to and including the immediate banks (and the vegetation that grows along it) on both sides of the body of water.
The 310 permit application is part of a comprehensive document called The Joint Application for Proposed Work in Montana’s Streams, Wetlands, Floodplains, and other Waterbodies. This single document can be used to apply for other permits that may be required from local, state, or federal entities and the instructions for the form provide useful information about permitting details.
An applicant can find the application and instructions in several locations, including the Montana DNRC website, local CD website, or by visiting a local CD office. A directory of all Montana CDs can be found at the Montana Association of Conservation Districts (MACD) website (http://macdnet.org/).
Upon submission of a complete application, the CD may schedule a site visit to evaluate the proposed approach for the project. A 310 inspection team is formed by a representative from the CD along with the applicant and a representative from Montana Fish, Wildlife & Parks. It is reasonable to anticipate between 30 and 60 days for the CD to process an application and schedule a site visit.
An integral part of the 310 Law is the minimum standards that the inspection team and Conservation District supervisors use to make determinations. This includes a requirement for the team and the CD to determine several factors, including the project’s effects on soil erosion, sedimentation, risks of flooding or damage to adjacent property, effects on stream channel alteration, water quality, and aquatic habitat. A project must demonstrate that the approach proposed is a reasonable means of accomplishing the purpose. If not, modifications by the team or the CD can be required.
Upon granting and receipt of a 310 permit, the proposed work can proceed as described. It is important to note that the applicant is fully responsible for securing any other permits that may also be required, including permits related to floodplains, wetlands, or other related topics. Any other permits are described in the Joint Application Instructions.
It is recognized that sometimes emergency circumstances arise requiring unpermitted work to take place. Under these conditions, an emergency notice of 310 activities can be submitted. Upon receipt of an emergency notice, the CD supervisors determine whether the action qualifies as a project. An inspection team makes an onsite inspection and recommends denial, approval, or modification of the project. The supervisors then review the emergency project and approve, deny, or approve with modifications, and notify the applicant and team members of the supervisors’ determination.
A person who has undertaken an emergency action that is denied or modified is required to submit a written notice to obtain approval under the normal process to mitigate the damages to the stream caused by the emergency action and to achieve a long-term solution. The supervisors’ determinations under both the permit and emergency provisions of the 310 Law are subject to review through arbitration or, at the election of the applicant, judicial review.
There are also provisions for those that violate the laws related to activity that physically alters or modifies the bed and banks of a perennially-flowing stream. The 310 Law provides that a project engaged in by any person without prior approval or activities performed outside the scope of written consent of the supervisors is a public nuisance and subject to immediate abatement.
The 310 Law also embodies the more standard form of enforcement; violations may be misdemeanors subject to criminal fine or subject to civil penalty. Enforcement under this statute is strengthened by legislative declaration that each day a person continues to physically alter or modify the stream subjects the person to a separate cause of action. In addition to collecting a misdemeanor or civil penalty, the board of supervisors may pursue action to require the person to restore, at the discretion of the court, the damaged stream, as recommended by the supervisors, to as near its prior condition as possible.
While the 310 Law and permitting process may seem complex, it serves to ensure that the original intent remains the focus of the procedures: evaluation and examination of activity that may potentially threaten the health and future of our important waterways. Local Conservation Districts serve their role in this process with the goal that securing a permit be straightforward and reasonable, while keeping in mind the crucial importance of our state’s streams and rivers.