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| Montana Administrative Register Notice 12-403 | No. 14 07/24/2014 | |
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BEFORE THE FISH AND WILDLIFE COMMISSION AND THE DEPARTMENT OF FISH, WILDLIFE AND PARKS OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On January 30, 2014, the Fish and Wildlife Commission (commission) and the Department of Fish, Wildlife and Parks (department) published MAR Notice No. 12-403 pertaining to public hearings on the proposed adoption of the above-stated rules at page 177 of the 2014 Montana Administrative Register, Issue Number 2.
2. The commission and department have adopted New Rule IV (ARM 12.7.1504) as proposed.
3. The commission and department have adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
NEW RULE I (12.7.1501) GENERAL PURPOSE (1) As determined by the department, these rules pertain to the department's response to the detection of a species of fish in public waters where the department has not authorized the presence of that species. (2) (a) through (3) remain as proposed. (4) During efforts to respond to
AUTH: 87-5-704, MCA IMP: 87-5-701, 87-5-704, 87-5-713, 87-5-715, MCA
NEW RULE II (12.7.1502) DEPARTMENT'S INITIAL RESPONSE AND ACTION PLAN (1) through (2)(f) remain as proposed. (3) To protect existing fisheries, local economies, wildlife enjoyment, and angler opportunities, the department shall attempt eradication or suppression of the unauthorized species if determined to be practical and necessary based on a risk and feasibility assessment, as set forth in this rule. (4) remains as proposed.
AUTH: 87-5-704, MCA IMP: 87-5-701, 87-5-704, 87-5-713, 87-5-715, MCA
NEW RULE III (12.7.1503) MANAGEMENT ACTIONS (1) The department's action plan for responding to a confirmed unauthorized species (a) through (g) remain as proposed.
AUTH: 87-5-704, MCA IMP: 87-5-701, 87-5-704, 87-5-713, 87-5-715, MCA
NEW RULE V (12.7.1505) REPORTING REQUIREMENTS (1) through (3) remain as proposed. (4) The electronic repository will be made available to the public.
AUTH: 87-5-704, MCA IMP: 87-5-701, 87-5-704, 87-5-713, 87-5-715, MCA
4. The commission and department have thoroughly considered the comments and testimony received. A summary of the comments received and the responses are as follows:
Comment 1: Nineteen comments stated "monitoring" should not be considered a management action. Two comments stated the department must be required to take action in response to an illegal introduction. Two comments stated adaptive management should be used up front not just after eradication or suppression efforts.
Response 1: The rules establish risk and feasibility considerations when developing a management action. A public process via the Montana Environmental Policy Act (MEPA) will be initiated prior to suppression or eradication efforts.
Comment 2: Eighteen comments stated information specific to illegally introduced species should be made accessible to the public.
Response 2: The commission and department agree and have added language to New Rule V (ARM 12.7.1505) stating the electronic repository documenting the investigation and subsequent management actions taken will be made available to the public.
Comment 3: Sixteen comments stated all illegal introductions, past and present, should be addressed through this rule. Response 3: Rules cannot be applied retroactively. The department may develop action plans for illegal introductions that occurred in the past.
Comment 4: Eight comments requested increasing the penalty for people caught illegally introducing fish. One comment stated the rules should address the penalties.
Response 4: Penalties for people caught illegally introducing fish are provided in statute, 87-5-721, MCA, and cannot be changed by rule.
Comment 5: Five comments requested licensed anglers to be consulted before the department makes a decision whether fish should be killed or allowed to remain in the water. Five comments stated any action to remove or kill game fish should be in compliance with MEPA.
Response 5: Any action to suppress or eradicate fish must be in compliance with MEPA which includes a public comment period in which all members of the public, including licensed anglers, can provide comment.
Comment 6: Four comments requested an increase in public awareness efforts.
Response 6: The department is launching new efforts about the dangers and damage resulting from illegally introduced fish including news releases, magazine articles, and printed material. The department has joined with angler groups to provide an enhanced reward program for reporting perpetrators.
Comment 7: Three comments stated waiting twenty years to suppress walleye in Noxon Reservoir was not right.
Response 7: These new rules should prevent this from occurring again. The rules require the department to conduct an initial investigation within 30 days and then prepare an action plan.
Comment 8: Three comments stated people should be held accountable and the department should enforce current laws.
Response 8: The department does its best to apprehend and hold those who are accountable. Under these rules, the department will respond to any reports of an unauthorized species and inform the public regarding the department's response and rationale behind the responses.
Comment 9: Two comments stated the requirement to eradicate or suppress fish does not give the department enough latitude. Two comments stated eradication or suppression of fish may lead to lawsuits.
Response 9: The department and commission adopted New Rule II (ARM 12.7.1502) which includes the risk and feasibility assessment to determine whether eradication or suppression is practical and necessary. This assessment and other authorities granted to the department may be used in a court of law to defend any lawsuit brought against the department.
Comment 10: Two comments stated the department must be held accountable to the statement that these rules would only apply to new waters found to have illegal introductions.
Response 10: The statement that these comments refer to was made during the public hearings. These comments were stated out of concern that the department would use these rules as a justification to change the management objectives and begin suppressing or eradicating a species that is currently being managed recreationally as a game fish. The department will not use these rules to change the management objectives already developed in the Statewide Fisheries Management Plan, the Fort Peck Management Plan, the Upper Missouri River Reservoirs Management Plan or any other planning effort in which the public has been a participant.
Comment 11: Two comments stated the department needed to reevaluate the policy prohibiting the stocking of walleye west of the Continental Divide.
Response 11: This department policy is a fish management issue and beyond the scope of this rulemaking.
Comment 12: Two comments supported the initial investigation beginning within 30 days and not 20 years.
Response 12: The commission and department appreciate the support.
Comment 13: One comment stated part of the problem comes from escaped species from licensed private ponds.
Response 13: The department and commission agree that this occurs. All species permitted by the department for stocking in private ponds are evaluated for their suitability in waters should they escape.
Comment 14: One comment opposed the option to deny fishing tournaments.
Response 14: The commission and department want to have the option to deny tournaments because allowing tournaments for unauthorized species sends the wrong message about how the department wants the public to view these actions.
Comment 15: One comment stated private ponds should be included in these rules.
Response 15: Private ponds are not included in these rules because the department already has authority under 87-4-603, MCA, to address any threat in private ponds.
Comment 16: One comment stated a timeline needs to be developed for an action plan.
Response 16: A timeline for developing an action plan was not incorporated into these rules because it is not possible to be able to predict when enough information will be collected to make an informed plan.
Comment 17: One comment stated it needed to make clear that management actions might be necessary even when it is not proven that an illegal introduction has occurred.
Response 17: The department and commission agree and have changed New Rule I (ARM 12.7.1501).
Comment 18: One comment requested the elimination of the statute preventing movement of live fish in the Eastern Fishing District.
Response 18: The repeal of statute is outside the scope of this rulemaking authority and requires an act of the state legislature.
Comment 19: One comment stated the proposed management actions don't prevent illegal fish. Instead the management actions penalize legal anglers.
Response 19: Legal anglers will not be affected by these actions.
Comment 20: One comment stated the department should not be evaluating impacts to existing fisheries when developing an action plan.
Response 20: Not considering the impacts on the existing fishery would be against the department's responsibilities.
Comment 21: One comment stated public comment should be taken prior to any adaptive management occurring.
Response 21: The public will be given an opportunity to provide comment during the commission process when it considers any proposed adaptive management.
Comment 22: One comment stated thirty days is not realistic to begin an initial investigation.
Response 22: Responding to an illegal introduction may be critical to stopping the spread of fish. The department and commission believe beginning the initial investigation within thirty days is appropriate.
Comment 23: One comment requested adding an illegally introduced fish could serve as a source population for further introductions to the list of considerations in New Rule II (ARM 12.7.1502).
Response 23: The department and commission recognize the concern and the risk is similar with every illegal introduction. For this reason, it is not necessary to include it on the list of risk factors to evaluate.
Comment 24: One comment stated a specific timeline should be included in New Rule IV (ARM 12.7.1504) instead of "after a reasonable period of time."
Response 24: Adaptive management allows for changes to be made as events happen and impacts become clear. A specific timeline cannot be developed because it is impossible to anticipate how long it will take to study and understand the ramifications of any and all possible management actions.
Comment 25: One person opposed the adoption of the rules.
Response 25: The department and commission appreciate the comment and participation in the rulemaking process. The adoption of the rules is necessary to address the illegal placement of fish.
Comment 26: One comment expressed concern whether the department can afford to respond to illegal introductions.
Response 26: The department and commission recognize the potential for response actions to be expensive and the rules allow for flexibility to make cost-effective choices and the ability to change management actions through the adaptive management.
/s/ M. Jeff Hagener /s/ Rebecca Dockter Jeff Hagener Rebecca Dockter Director Rule Reviewer Department of Fish, Wildlife and Parks
/s/ Dan Vermillion Dan Vermillion Commission Chairman Fish and Wildlife Commission
Certified to the Secretary of State July 14, 2014
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