BEFORE THE GOVERNOR'S OFFICE

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I and II pertaining to implementation of the Sage Grouse Stewardship Act

) ) )

NOTICE OF ADOPTION

 

TO: All Concerned Persons:

 

1. On December 10, 2015, the Governor's Office published MAR Notice No. 14-3 pertaining to the notice of public hearings on the proposed adoption of the above-stated rules at page 2125 of the 2015 Montana Administrative Register, Issue Number 23.

 

2. The Governor's Office has adopted the above-stated rules as proposed: New Rules I (14.6.101) and II (14.6.102).

 

3. The Governor's Office has thoroughly considered the comments and testimony received. A summary of the comments received and the Governor's Office responses are as follows:

 

COMMENT 1: 

The Governor's Office received many comments specific to the draft grant application itself although the application is not incorporated into the proposed rule. 

 

RESPONSE 1:

The Governor's Office made the draft application available for public review at the same time as the proposed rule so that the public had the opportunity to review these related draft documents simultaneously. The Governor's Office explained during the public hearings that whereas the application itself was not incorporated into the actual rule proposal, public comment on the application was welcomed and would be considered prior to finalizing the application. The Governor's Office will consider public comments received specific to the application prior to finalizing it.  

 

COMMENT 2: 

Grant administration costs should be eligible for reimbursement under this grant program. 

 

RESPONSE 2: 

The Governor's Office acknowledges that successful grant recipients would incur costs to administer Sage Grouse Stewardship Fund grants. Montana Code Annotated § 76-22-110(4) states that "[g]rant funds may not be used to supplement or replace the operating budget of an agency or organization except for budget items that directly relate to purposes of the grant." The final rule must be consistent with the statute.

 

COMMENT 3: 

Protest of Executive Order No. 1[2]-2015.

 

RESPONSE 3: 

The 2015 Montana Legislature authorized the Montana Sage Grouse Oversight Team to conduct rulemaking pertaining to the grant program established in the Montana Greater Sage-Grouse Stewardship Act (Act). Mont. Code Ann. § 76-22-104. 

 

COMMENT 4: 

Grants should be offered to private landowners next to U.S. Bureau of Land Management (BLM) lands to increase the indicators discussed in the BLM's Habitat Assessment Framework document, published in June, 2015. Apply the information in this document to assess what is needed on all land for sage grouse survival. The Oversight Team should also consider where leks are located and also use them as indicators.

 

RESPONSE 4: 

The Act sets forth specific eligibility and evaluation criteria by which the Montana Sage Grouse Oversight Team would consider grant applications. The Act directs the Montana Sage Grouse Oversight Team to give greater priority to proposals that maximize the number of credits generated per dollars of grant funds awarded, and which are actually available for compensatory mitigation. Mont. Code Ann. §§ 76-22-104(1)(d), 76-22-109(4). The purpose of the grant program is to maintain, enhance, restore, expand, and benefit sage grouse habitat and populations on private lands and public lands as needed, that lie within core areas, general habitat, or connectivity areas. Mont. Code Ann. §§ 76-22-102(2). The Montana Sage Grouse Oversight Team and the Program will be guided by the Stewardship Act and this final rule.

 

COMMENT 5: 

The Montana Sage Grouse Oversight Team should consider using some funds to purchase land from willing sellers at market value, restore the habitat, place a conservation easement on the property and then sell the land to a conservation buyer, similar to the Duck's Unlimited Revolving Land Program.

 

RESPONSE 5: 

The Act explicitly states that a project is ineligible if it seeks grant funding "for fee simple acquisition of private land." Mont. Code Ann. § 76-22-109(5)(a). 

(See Response 4).

 

COMMENT 6: 

The grant program should be flexible, adaptive, and landowner friendly.

 

RESPONSE 6: 

The Governor's Office agrees. Stewardship of private lands by Montana landowners has contributed greatly to sage grouse habitat conservation efforts. The purpose of the Act and the grant program is to provide competitive grant funding and establish ongoing free-market mechanisms for voluntary incentive-based conservation measures on private lands and public lands as needed. Mont. Code Ann. § 76-22-102(2). 

 

COMMENT 7: 

Private landowners as individuals should be eligible to apply for funds from the grant program to continue to do the management they are already doing or to make improvements. Landowners should not be required to work with or involve an agency or organization to receive grant funds. The Oversight Team could serve as the agency or organization in partnership with the private landowner so that grant fund dollars could be distributed to private landowners.

 

RESPONSE 7: 

The Act states "grants may be awarded only to organizations and agencies that hold and maintain conservation easements or leases or that are directly involved in sage grouse habitat mitigation and enhancement activities approved by the oversight team." Mont. Code Ann. § 76-22-110(3). The Governor's Office acknowledges that private citizens are not directly eligible to receive funds from the Act's grant program and encourages landowners to consider other sources for funding or technical assistance to accomplish their goals. Otherwise, "agency" and "organization" are defined as broadly as possible, but does require that organizations are both registered and authorized to conduct business in the State of Montana by the Montana Secretary of State. 

 

COMMENT 8: 

Predation is the greatest threat to sage grouse.

 

RESPONSE 8: 

The Act allows for an application for a depredation permit to be submitted to the U.S. Fish and Wildlife Service to control common ravens or black-billed magpies to reduce depredation on sage grouse populations, as necessary. A grant application for a project that would reduce unnatural perching platforms for raptors or unnatural safe havens for predators would be eligible for funding. Mont. Code Ann. § 76-22-110(1)(i), (j). 

 

COMMENT 9:

A scoring matrix should be available to applicants and grant reviewers prior to submitting grant applications.

 

RESPONSE 9: 

The Sage Grouse Habitat Conservation Program will endeavor to make a scoring matrix available at the time a grant cycle is announced and applications are made available to the public.

 

COMMENT 10:

The grant cycle should be quarterly. 

 

RESPONSE 10:

The Governor's Office acknowledges that some potential applicants prefer a more frequent grant cycle than the twice yearly cycle anticipated for spring and fall, 2016. Under the proposed rule, the Montana Sage Grouse Oversight Team has the flexibility to publish grant application deadlines on the Department of Natural Resources and Conservation web site at its discretion. In the future, it may choose the more or less frequent grant cycles, so long as it provides adequate public notice and considers public comment. 

 

COMMENT 11: 

The definition of organization should be clarified so as to not limit eligibility unnecessarily. It's unclear whether individuals or sole proprietors who register an assumed business name with the Secretary of State's Office are considered an "organization" as that term is proposed to be defined.

 

RESPONSE 11: 

The proposed definition of "organization" is intended to be broad. Individuals or sole proprietors are not an organization eligible for a grant award under the Act. (See Response 7). Accordingly, the proposed definition of "organization" excludes individuals and sole proprietors, even if such individuals register an assumed business name with the Secretary of State. An individual or sole proprietor is not an entity, nor is the registry of an assumed business name an authorization by the Secretary of State to conduct business in the state of Montana.

 

COMMENT 12:

Support conservation efforts by the State of Montana through the sage grouse program and particularly this grant program to maintain state management authority for the species.

 

RESPONSE 12:

The Governor's Office agrees on the importance of conservation efforts to maintain state authority to manage sage grouse and to implement a conservation strategy that precludes the need to list the species under the federal Endangered Species Act.

 

 

 

/s/  Andrew I. Huff                                 /s/ Tim Baker                            

Andrew I. Huff                                       Tim Baker

Rule Reviewer                                       Governor's Office

                                                              State of Montana

 

         

Certified to the Secretary of State February 22, 2016.