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| Montana Administrative Register Notice 12-368 | No. 22 11/25/2011 | |
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BEFORE THE FISH, WILDLIFE AND PARKS COMMISSION OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On May 26, 2011 the Fish, Wildlife and Parks Commission (commission) published MAR Notice No. 12-368 pertaining to the proposed amendment of the above-stated rules at page 767 of the 2011 Montana Administrative Register, Issue Number 10. 2. The commission has amended ARM 12.11.610, 12.11.615, and 12.11.620 with the following changes, stricken matter interlined, new matter underlined: 12.11.610 BITTERROOT RIVER (1) Bitterroot River is closed to use of any motorized 12.11.615 BLACKFOOT RIVER (1) The Blackfoot River and its tributaries are closed to use of any motorized watercraft from 12.11.620 CLARK FORK RIVER (1) The Clark Fork River and its tributaries, unless specified elsewhere in this chapter, are closed to all motorized watercraft, including personal watercraft as defined in 23-2-502, MCA, except: (a) from Kelly Island (Spurgin Road) Fishing Access Site boat ramp and the Grass Valley Ditch Diversion to Harper's Bridge Fishing Access Site: (i) any motorized watercraft, except personal watercraft as defined in 23-2-502, MCA, are permitted from May 1 to June 15; and (ii) any motorized watercraft 20 horsepower or less are permitted from October 1 through January 31. (b) from Harper's Bridge Fishing Access Site to St. John's Fishing Access Site: (i) any motorized watercraft, except personal watercraft as defined in 23-2-502, MCA, are permitted from October 1 to June 15; and (ii) any motorized watercraft 20 horsepower or less are permitted from June 16 through September 30. (c) from the mouth of Fish Creek to the Montana border. 3. The commission has thoroughly considered the comments received. A summary of the comments received and the commission's responses are as follows: Comment 1: The commission received multiple comments from people concerned for the safety of river users in the presence of high speed motorboats. Several commented that the relatively small channel size and braided sections of river found on the Clark Fork and Bitterroot contribute to the problem. Several people stated that jet boats need to maintain a high rate of speed to avoid beaching in shallow sections of water and that these are the same areas popular among nonmotorized users. Some expressed specific concerns that waves caused by motorboats create safety issues for nonmotorized users specifically at Brennan's Wave on the Clark Fork River. A few comments stated that swimmers, inner tubers, and kayakers have low profiles in the water and are especially hard to see when travelling in a fast-moving motorboat. Some comments stated that lakes are a more appropriate place for motorboats to operate safely. Response 1: The commission adopted the rule amendments to address concerns about the safety of river users in the presence of fast moving motorized watercraft and personal watercraft. The prohibition on motorized use is tied to sections of the river where the volume of use is highest and the potential for accidents is greatest. Similarly, the sections of river that remain open to unrestricted motorized use are sections where the volume of use is less and the potential for accidents is lower. The commission received 109 comments with concerns particular to personal watercraft use on the rivers indicating that personal watercraft are a primary source of social conflict and safety concern. Comment 2: The commission received a few comments questioning whether the department has documented collisions between power boats and nonmotorized users on the rivers because no factual data was provided to validate the concerns. Response 2: The department does not have record of serious boating collisions on these sections of river. The commission concluded, however, that the potential for collisions to occur is greater in the sections of river close to Missoula that are commonly used by nonmotorized users. Brennan's Wave on the Clark Fork is a popular location for kayakers. The Clark Fork through Missoula is popular for many forms of nonmotorized use. The public has provided numerous descriptions of close encounters with motorboats or personal watercraft and their concern for safety. The department has also observed motorboats operating in close proximity to other recreationist on the sections of river close to Missoula. Comment 3: The commission received a comment stating it is not necessary to wait until a boat accident occurs before implementing restrictions and preventive policies and rules are frequently made based on the potential for accidents. Response 3: The commission concurs that it is not necessary for accidents to occur prior to adopting safety measures and has amended the rules to minimize the potential for boating accidents. Comment 4: The commission received a few comments stating motorboats often rescue nonmotorized river users that have encountered problems on the water. Response 4: Recreationists are responsible for their own safety and should be aware of inherent risks, know their own capabilities, and know how to respond to emergency situations. Search and rescue operations are exempt from the restrictions stated in this rule according to ARM 12.11.505. Comment 5: The commission received one comment stating there should be a section of river set aside just for motorboats. Response 5: The rule amendments maintain a variety of opportunities for both motorized and nonmotorized river use. The commission only prohibited motorized use in places where social conflict concerns were highest. Less restrictive measures were taken elsewhere. Establishing a section of river only open to motorized users was not viewed as necessary or appropriate for the conditions present. Comment 6: The commission received a few comments stating that log jams, submerged logs, and rocks make it dangerous for motor boats to operate on these rivers due to the speed of their travel. Response 6: Recreationists are responsible for their own safety and should be aware of inherent risks, know their own capabilities, and know how to respond to emergency situations. Comment 7: The commission received a few comments regarding overcrowding. Some comments stated that overcrowding is the issue and restrictions should apply to all river users not just motorized users. Some comments stated that nonmotorized river use has increased and that it is contributing to the problem. Response 7: The commission acknowledges the number of people recreating on these rivers may be a contributing factor to the public's safety concerns and social conflicts. The department does not have specific data on the volume of recreation use occurring on these rivers; however, input from the public and observations by department personnel indicates use has increased in recent years during the summer months and concerns are heightened when motorboats operate in the more frequently used sections of the rivers and the adopted amendments balance the interests and concerns of all users and maintain a diversity of recreational opportunities. Comment 8: The commission received many comments regarding the negative impacts of the noise from motorboats and personal watercraft stating it detracts from the recreational experience of others and scares off the wildlife and birds from the river corridor. Response 8: The commission acknowledges the many forms of recreation that seek an experience in the absence of motor sounds and also acknowledges motorboat operators enjoy recreating on rivers. The commission ultimately adopted amendments that are intended to balance the interests of all river users and provide sections of river and times of year when people can recreate in the absence of motorboats and associated motor noises. Comment 9: The commission received multiple comments expressing concern about personal watercraft and recommending the prohibition of personal watercraft due to the personal watercraft users commonly travel in circles on the water to jump wakes and personal watercraft need to travel at a high speed to maintain maneuverability. Some comments stated that personal watercraft operate in close proximity to other users posing safety concerns. Response 9: The commission adopted rules prohibiting personal watercraft based on the number of comments expressing specific concern over personal watercraft, the knowledge that personal watercraft are often used in a manner that is incompatible with other types of river use, and the public's safety concerns related to personal watercraft operating in close proximity to low profile boaters, swimmers, and anglers. The commission concurred that unlike other types of motorboats that are more commonly used as transportation from one location to another on a river, personal watercraft are often operated in a smaller area and in a circular manner for the purpose of wake jumping and this practice may be appropriate on some water bodies but that it raises safety concerns on a river where use is high and the channel width is relatively narrow. Comment 10: The commission received one comment expressing concern that a twenty horsepower motor restriction would not apply to the use of personal watercraft. Instead, they recommended that the commission prohibit all motorize watercraft use on the Clark Fork from the Blackfoot River confluence to Harper's Bridge fishing access site. Response 10: The department's research did not identify any types or brands of personal watercraft that are equipped with twenty horsepower or smaller engines. However, the commission has adopted rules prohibiting personal watercraft on all sections of river affected by these rules. Comment 11: The commission received many comments expressing concern that motorboats negatively impact natural resources in and along the Clark Fork, Blackfoot, and Bitterroot Rivers including erosion, increased turbidity, water contamination from fuel and oil, and air contamination from engine exhaust. Some comments pointed to scientific studies and areas identified as important to a particular species. Some comments described personal observations of impacts associated with motorboats. Response 11: The rule amendments were proposed in response to public concern over public safety and social conflicts. While natural resources are important to consider when managing recreation in river and riparian corridors, the commission did not amend the rules for the purpose of addressing natural resource impacts from motorboats use on these rivers. The department's resource specialists reviewed the environmental impacts of the amendments and based on the scientific information available concluded that motorized activity permitted under this decision would not have a significant impact on the resources. Comment 12: The commission received many comments expressing concern that restrictions on motorboats in one section of a river could result in this use being displaced to another section of the river specifically sections of the Clark Fork River and the Bitterroot River. The comments expressed concern that an increase in motorized use in these open sections would reduce the quality of the experience for motorized and nonmotorized users and could lead to safety concerns. One comment suggested that nonmotorized use be prohibited in these sections to address the safety concerns and others suggested that the commission allow motorboats to use these sections during the spring when the water is high and close it the rest of the year. Response 12: The commission modified its original rule proposal by lengthening the section of the Clark Fork open to motorized use with the exception of personal watercraft. The intent was to disperse use across a longer section of the river and avoid the potential for congestion and increased public safety concerns in a shorter section of river. The commission did not see a need for limiting use to the spring when river flows are higher. Comment 13: The commission received several comments that the problem has to do more with the behavior of motorboat operators stating the inappropriate behavior of the minority can ruin it for the majority of motorized users who operate their watercraft in a respectful and safe manner, nonmotorized users are mainly complaining about the behavior of intoxicated boaters which is an enforcement issue and motor restrictions are not the appropriate response to this problem. Some comments suggested that the department increase its enforcement presence rather than imposing restrictions. Response 13: Enforcement presence and river patrols can help to deter or correct unsafe behavior; however, the popularity of nonmotorized river use in the vicinity of Missoula makes it difficult to address public safety concerns through enforcement alone. The commission decided that in the sections of river with a higher concentration of nonmotorized use it would be more effective to prohibit motorized watercraft. The commission retained opportunities for motorboats, except personal watercraft, in other sections of river and the department will continue to use enforcement and river patrols to help address safety concerns. Comment 14: The commission received several comments recommending a restriction on motor size instead of prohibiting motorboats altogether because smaller motors are quiet, do not leave wakes, and can be of assistance when there is an upriver wind. Response 14: The commission considered all options and decided to prohibit motorboats on the sections of river where the public's safety concerns and social conflicts were greatest. The commission adopted less restrictive rules on other sections of river where these concerns were less prevalent. Comment 15: The commission received several comments stating twenty horsepower motors do not provide enough power for a boat to safely navigate in rivers and expressed specific concern for waterfowl hunters in the fall when emersion in cold water is a concern and the potential for boating accidents due to insufficient horsepower. Response 15: A fifteen horsepower restriction was in place on some sections of river prior to the amendment of these rules. The commission increased the horsepower allowed to twenty horsepower in recognition of changing industry standards for portable motors. It is important for boaters to assess their skills and experience relevant to the conditions present and determine whether it is safe to proceed. Comment 16: The commission received a few comments that the amount of horsepower available at the engine prop or jet is less than that at the head of the engine. One comment requested that the power be measured at the motor head and others requested the power be measured at the jet. Response 16: For enforcement purposes and ease of compliance, the horsepower restriction will apply to the amount of horsepower present at the motor head. Comment 17: The commission received several comments opposed to increasing the maximum horsepower from fifteen to twenty horsepower stating fifteen horsepower is sufficient for waterfowl hunting and fishing. A few comments recommended that the maximum horsepower be reduced below fifteen horsepower. Response 17: Increasing the maximum horsepower from fifteen to twenty horsepower will result in a single, consistent horsepower restriction that will accommodate the majority of recreationists who use a portable motor while waterfowl hunting and fishing. Comment 18: The commission received a few comments that two-stroke boat engines should be phased out and eventually prohibited. They recommended requiring four-stroke boat engines for the reason that they are cleaner and quieter. Response 18: The commission at this time does not see a need to require four-stroke engines. Comment 19: The commission received several comments concerned the amendments would restrict motorized use for emergency response services. Response 19: Search and rescue operations are exempt from the restrictions stated in this rule according to ARM 12.11.505. Comment 20: The commission received several comments suggesting zoning the river use or allowing motorboats to use the river at certain times of the day or certain days of the week. Response 20: The commission believes these suggestions would be difficult to enforce and confusing to the public. Comment 21: The commission received a few comments recommending speed limits instead of horsepower restrictions. Response 21: The dynamic nature of a free-flowing river would make enforcing a speed limit difficult. River conditions may require more speed in order to navigate a section of river. The commission adopted restrictions that would most appropriately address the public's social and safety concerns. Comment 22: The commission received several comments recommending the department increase its educational efforts about boating safety, etiquette, and respect for the resources and other users including expanding the boating safety course to offer refresher courses, developing a boating education program tailored to these sections of river, making it mandatory after three years of a voluntary program, and developing a training program for river users that is similar to the Hunter Education Program. Response 22: The commission agrees that boating safety education is important and will share these suggestions with the department. Comment 23: The commission received comments that there are ample opportunities for motorboats on other rivers in western Montana and motorboats can be transported to other less used rivers. Response 23: The commission wanted to maintain some opportunities for motorboats to operate in the Missoula vicinity. In addition, the commission wanted to minimize negative effects of displaced and concentrated motorized use on other rivers as a result of its decision. Comment 24: The commission received a few comments stating that there are only about twenty miles of river available for motorboats during the main fishing season in Missoula County. They commented that there are hundreds of miles of stream available for nonmotorized use. Response 24: The rule amendments provide opportunities for some motorized use while at the same time addressing public safety and social conflict concerns. Comment 25: The commission received comments supporting the proposed restrictions on motorboats but requested that they be expanded to more sections of these rivers and for longer periods of time. Response 25: The amendments provide opportunities for some motorized use while at the same time addressing the public's safety and social conflict concerns. The commission views it decision as a balance between those in favor of restricting motorized use and those advocating for no restrictions. Comment 26: The commission received a few comments requesting that the rules should be simple, consistent, and easy to understand. Response 26: The commission agrees that simplification of rules is a worthy goal but becomes more challenging as the complexity of the issues increases. In order to accommodate a variety of different user groups and interests, it is necessary to develop different rules for different sections of rivers. Comment 27: The commission received comments concerned the administrative rules for river recreation management may be overlooked. One person commented that the citizen advisory committee tasked with examining these issues did not have adequate representation of motorized river users and the commission is required to consider the best available data but does not have any scientific data showing that a problem exists or the scope of the problem. Also, the department has made no attempt to obtain information needed to adopt a new management plan and the commission has not considered less restrictive management actions before proceeding to more restrictive management actions. Response 27: The department and the commission consulted the statewide river recreation rules, ARM 12.11.401 through 12.11.455, throughout the rulemaking process. The department tasked a subgroup of the regional citizen advisory committee to consider the issues and make a recommendation to the commission. The subgroup included people with motorboat experience and interests. In developing its recommendations for commission consideration, the department considered the best available information from staff, input from the public that use a variety of watercraft, and the recommendations of the subgroup. The commission made its final decision based on this information plus extensive public comment that provided opinion regarding future management of the watercraft on the rivers, and specific information about river use levels and user-specific information regarding time and place of use and experiences. Public comment and staff input provided data for making and revising department recommendations and the commission decision. The rule amendments maintain a variety of recreational opportunities and there are still sections of river with minimal or no restrictions on motorboats. In addition, the department will continue with nonrestrictive measures such as boating safety education, river recreation etiquette, and maintaining a presence in the field. Comment 28: The commission received several comments stating allowing motorized use to continue without restrictions will have negative economic impacts. The Clark Fork River is important to the local tourism economy and that visitors are attracted to it for various types of nonmotorized use and a proliferation of motorboat use would detract from the experience. Response 28: The commission recognizes the overall value of river-related recreation and tourism to the local economy. The amendments are intended to maintain a variety of quality recreation opportunities and this in turn should be of value to the economy.
Comment 29: The commission received a comment expressing concern that the current use of motorboats may be violating the good neighbor rule citing 23-1-126(1), MCA and underscored the goal of recreational use having no impact on adjoining private and public land by preventing impact on the adjoining land from noxious weeds, trespass, litter, noise and light pollution, bank erosion, and loss of privacy. The commission also received a comment requesting the commission fulfill the requirements of 23-1-127, MCA which requires" implementation of safety and health measures required by law to protect the public", by separating motorized users from vulnerable nonmotorized users and questioned whether encouraging high-powered boat use during spring runoff when the river is filled with large floating debris is implementing appropriate safety measures. Response 29: The good neighbor policy, found at 23-1-126 and 23-1-127, MCA, only applies to properties adjacent to lands acquired or purchased by the department. The good neighbor policy does not apply to situations, as the one here, where the commission adopts rules on water bodies within its jurisdiction. Comment 30: The commission received several comments that river flows will dictate the use of motorboats on these rivers and that restrictions are not necessary stating during high water in the spring the motorized boats are able to use the river but there are few other users out recreating that time of year and motorboat use will dissipate once the flows get low, which is when the nonmotorized users tend to use the river more. Response 30: Establishing a set date on the calendar enables the public to easily determine when a particular use is allowed. This also simplifies enforcement efforts. The dates selected for the regulations are intended to coincide with average historic flow conditions. Comment 31: The commission received comments supporting a prohibition on motorboats on the Blackfoot and Clark Fork Rivers in the vicinity of the Milltown Dam location and noted that this area will likely experience increased use by nonmotorized users. Response 31: The commission agrees that the removal of Milltown Dam and the addition of a state park could result in more nonmotorized use. Comment 32: The commission received a few comments that the department should encourage people to be more tolerant and learn to share the river instead of proposing restrictions that could lead to greater intolerance among the various user groups and people who live along a river need to be tolerant of the different types of recreation that occur on a public waterway, much like living along a public street. Response 32: The commission appreciates these comments and agrees that tolerance among different types of recreation groups is important. Montana's waterways are public domain and the commission agrees people recreating on rivers can help to prevent conflicts with landowners by respecting private property and practicing river etiquette. Comment 33: The commission received a few comments that a portion of the department's funding comes from motorboats and therefore it is not fair to restrict their opportunities. Response 33: The department does receive Wallop Breaux funding to develop and improve boat access sites across the entire state and these rules do not affect nor are affected by this funding source. Comment 34: The commission received comments from some people stating that jet boats and other forms of motorboats are necessary for those people who are physically incapable of operating a float boat. Response 34: Some individuals with disabilities use motorboats to recreate on rivers and others use nonmotorized watercraft that has been modified for use by individuals with disabilities. The commission seeks to provide opportunities for those with physical limitations to enjoy our river resources in both motorized and nonmotorized boats. The commission has retained areas where motorboats are allowed and provided for other areas where motorboats are restricted. Comment 35: The commission received a few comments expressing specific concern about the impacts of motorboats on angling. One commented that angling on the Bitterroot during the winter is becoming more popular and the wake created by motorboats is inappropriate, particularly when the water level is low. Another comment stated that motorboats have a negative impact on anglers fishing to rising fish. Response 35: The commission wished to provide a balance between motorized and nonmotorized use during the winter on the Bitterroot. The amount of motorized use that occurs in the winter is usually low but it does provide an opportunity for waterfowl hunters and anglers. Comment 36: The commission received a comment stating that the department's analysis lacked data and was subjective. Response 36: The commission points out that the department used the best available information in assessing the predicted environmental outcomes of amending the rules. Sources of information included extensive input from the public, staff observations in the field, and input from staff specialists. Comment 37: The commission received a comment requesting that special permits be available to use motorboats for conducting research, survey, and engineering work. Response 37: ARM 12.11.505 allows for the director to approve exceptions to these rules for purposes such as safety patrols and scientific surveys. Comment 38: The commission received some comments supporting no-wake restrictions but opposed to rules that would prohibit motorized use. Response 38: No-wake restrictions are frequently used on lakes but are less effective on rivers where river current and other conditions can create white water that can be mistaken as a wake. Comment 39: The commission received several comments that the majority of the river users are nonmotorized users and that it will be easier to adopt restrictions on motorized use now, as opposed to adopting restrictions when motorized use has become more entrenched. Response 39: The commission appreciates the interest in this rulemaking process. Comment 40: The commission received a comment that policy and rules should be for the purpose of creating diverse opportunities for all users while maintaining a healthy ecosystem. Response 40: The commission recognizes the benefits of providing a variety of recreational opportunities and maintaining healthy ecosystems. Comment 41: One comment stated that the proposed rule amendments would eliminate one of the two publicly available boat ramps in the greater Missoula area, referring to the Kelly Island boat ramp. Response 41: The commission has adopted the rule with amendments allowing seasonal use of the Kelly Island boat ramp and a possible boat ramp at Harper's Bridge Fishing Access Site. Comment 42: The commission received a comment that for safety reasons, the restriction on motorized use should apply to the section of the Clark Fork where the Grass Valley diversion dam is located, near Kelly Island. Response 42: The commission has decided to use the Grass Valley diversion dam as a break for determining boating regulation changes. The diversion, in conjunction with the Kelly Island (Spurgin Road) boat ramp, is the upstream boundaries for motorized access on the Clark Fork. Above these locations, motorized use on the Clark Fork River is prohibited. Comment 43: The commission received a comment suggesting that the department post signs at the entrance to the narrower side channels prohibiting entry by motorboats. Response 43: The dynamic nature of changing river channels would make posting accurate signage and enforcement very difficult and potentially confusing to the public. Comment 44: The commission received a comment suggesting a year-round horsepower limit on the Bitterroot River. Response 44: The commission wants to retain a variety of recreational opportunities on the Bitterroot River while at the same time addressing public safety and social conflict concerns. The commission adopted a horsepower limit for the waterfowl season. Comment 45: The commission received a comment stating that it does not make sense to prohibit motorboats on the Clark Fork River around Missoula and allow this use on the Bitterroot which is smaller in size and subject to the same social and safety concerns. Response 45: Public comment received during the public process did not indicate frequent conflict or safety concerns during times when motorized use was permitted in this section. The opposite was true of comments received in regard to use on the Clark Fork River around Missoula, where reports of user conflicts and safety concerns were much more prevalent. Comment 46: The commission received multiple comments suggesting variances to the boundaries and restriction within the boundaries stating multiple reasons. Response 46: The commission adopted the rules with the boundaries and restrictions to address social conflicts and the public's concerns about safety in the presence of fast-moving motorized watercraft and personal watercraft. The commission amended restrictions and boundaries on the Clark Fork River to ensure that Kelly Island Fishing Access Site was available for motorized watercraft when permitted. Boundaries and restrictions were designated to address concerns regarding volume and types of use and social conflicts, but still provide diverse opportunities for recreation.
Certified to the Secretary of State November 14, 2011.
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