Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

In the matter of the adoption of ARM New Rule I through V, and repeal of 4.5.202, 4.5.203, 4.5.204, and 4.5.205 relating to noxious weeds

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND REPEAL

TO: All Concerned Persons

1. On December 4, 2009, at 10:00 the Montana Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 303 N. Roberts at Helena, Montana, to consider the proposed adoption and repeal of the above-stated rules.

2. The Department of Agriculture will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process and need an alternative accessible format of this notice. If you require an accommodation, contact Department of Agriculture no later than 5:00 p.m. on December 1, 2009, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen at the Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; phone: (406) 444-3144; fax: (406) 444-5409; or e-mail: agr@mt.gov.

3. The rules as proposed to be adopted provide as follows, new matter underlined, deleted matter interlined:

NEW RULE I PRIORITY 1A (1) These weeds are not present in Montana. Management criteria will require eradication if detected, education, and prevention:

(a) Yellow starthistle (Centaurea solstitialis).

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

Reason: The system of categorizing noxious weeds was determined to be inadequate to address invasive plants in Montana. Priority listing of noxious weeds was deemed more responsive to the state's weed listing needs.

Financial impact: This is the result of noxious weed reclassification and the shift of Yellow starthistle from the category system to a priority system and warrants no change financially.

NEW RULE II PRIORITY 1B (1) These weeds have limited presence in Montana. Management criteria will require eradication or containment and education:

(a) Dyer's woad (Isatis tinctoria);

(b) Flowering rush (Butomus umbellatus);

(d) Purple loosestrife (Lythrum spp.);

(e) Rush skeletonweed (Chondrilla juncea);

(f) Eurasian watermilfoil (Myriophyllum spicatum);

(g) Scotch broom (Cytisus scoparius);

(h) Curlyleaf pondweed (Potamageton crispus).

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

REASON: The system of categorizing noxious weeds was determined to be inadequate to address invasive plants in Montana. Priority listing of noxious weeds was deemed more responsive to the state's weed listing needs. Seven invasive plants (dyer's woad, flowering rush, Japanese knotweed complex, purple loosestrife, rush skeletonweed, Eurasian watermilfoil and Scotch broom) previously declared noxious weeds under ARM 4.5.201 are being shifted to this priority description. The Montana Department of Agriculture received a petition from Sanders County to list curlyleaf pondweed as a noxious weed. The department sponsored Montana Noxious Weed List Advisory Committee has reviewed the biology of this plant and has determined it has the potential for rapid spread and invasion of noninfested water. This aquatic weed is capable of economically and biologically adversely affecting Montana's waterways, riparian areas, and other lands. This determination, resulting in the designation as a Priority 1B noxious weed, will increase public awareness and recognition of these weeds, encourage education or identification and control, improve monitoring for infestations, improve control and containment of existing infestations, and provide for eradication of new or small infestations. Curlyleaf pondweed is an extremely aggressive invasive aquatic plant that hinders use of waters for recreation, agriculture, and wildlife in 94% of the lower 48 states and five provinces. It has been declared noxious in six states.

Financial impact: The shift of dyer's woad, flowering rush, Japanese knotweed complex, purple loosestrife, rush skeletonweed, Eurasian watermilfoil, and Scotch broom from the category system to a priority system is the result of noxious weed reclassification and warrants no change financially. Aquatic vegetation management in irrigation systems routinely includes control of curlyleaf, and as it exponentially obstructs lakes and other state water-bodies, it represents a rising cost to Montanans. Conceivably, by listing the weed as noxious, the cost of control will gradually slow as further spread is prevented through education and awareness.

NEW RULE III PRIORITY 2A (1) These weeds are common in isolated areas of Montana. Management criteria will require eradication or containment where less abundant. Management shall be prioritized by local weed districts:

(a) Tansy ragwort (Senecio jacobaea);

(b) Meadow hawkweed complex (Hieracium spp.);

(d) Tall buttercup (Ranunculus acris);

(e) Perennial pepperweed (Lepidium latifolium);

(f) Yellowflag iris (Iris pseudacorus);

(g) Blueweed (Echium vulgare);

(h) Hoary alyssum (Berteroa incana).

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

REASON: The system of categorizing noxious weeds was determined to be inadequate to address invasive plants in Montana. Priority listing of noxious weeds was deemed more responsive to the state's weed listing needs. Eight invasive plants, (tansy ragwort, meadow hawkweed complex, orange hawkweed, tall buttercup, perennial pepperweed, yellowflag iris, blueweed, and hoary alyssum) previously declared noxious weeds under ARM 4.5.201 are being shifted to this priority description.

Financial impact: The shift of tansy ragwort, meadow hawkweed complex, orange hawkweed, tall buttercup, perennial pepperweed, yellowflag iris, blueweed, and hoary alyssum from the category system to a priority system is the result of noxious weed reclassification and warrants no change financially.

NEW RULE IV PRIORITY 2B (1) These weeds are abundant in Montana and widespread in many counties. Management criteria will require eradication or containment where less abundant. Management shall be prioritized by local weed districts:

(a) Canada thistle (Cirsium arvense);

(b) Field bindweed (Convolvulus arvensis);

(d) Whitetop (Cardaria draba);

(e) Russian knapweed (Centaurea repens);

(f) Spotted knapweed (Centauria stoebe or maculosa);

(g) Diffuse knapweed (Centaurea diffusa);

(h) Dalmatian toadflax (Linaria dalmatica);

(i) St. Johnswort (Hypericum perforatum);

(j) Sulfur cinquefoil (Potentilla recta);

(k) Common tansy (Tanacetum vulgare);

(l) Oxeye daisy (Leucanthemum vulgare);

(m) Houndstongue (Cynoglossum officinale);

(n) Yellow toadflax (Linaria vulgaris);

(o) Saltcedar (Tamarix spp.).

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

REASON: The system of categorizing noxious weeds was determined to be inadequate to address invasive plants in Montana. Priority listing of noxious weeds was deemed more responsive to the state's weed listing needs. Eight invasive plants, (Canada thistle, field bindweed, leafy spurge, whitetop, Russian knapweed, spotted knapweed, diffuse knapweed, dalmatian toadflax, St. Johnswort, sulfur cinquefoil, common tansy, oxeye daisy, houndstongue, yellow toadflax, and saltcedar) previously declared noxious weeds under ARM 4.5.201 are being shifted to this priority description.

Financial impact: The shift of Canada thistle, field bindweed, leafy spurge, whitetop, Russian knapweed, spotted knapweed, diffuse knapweed, dalmatian toadflax, St. Johnswort, sulfur cinquefoil, common tansy, oxeye daisy, houndstongue, yellow toadflax, and saltcedar from the category system to a priority system is the result of noxious weed reclassification and warrants no change financially.

NEW RULE V PRIORITY 3 REGULATED PLANTS (NOT MONTANA LISTED NOXIOUS WEEDS) (1) These regulated plants have the potential to have significant negative impacts. The plant may not be intentionally spread or sold other than as a contaminant in agricultural products. The state recommends research, education, and prevention to minimize the spread of the regulated plant:

(a) Cheatgrass (Bromus tectorum);

(b) Russian olive (Elaeagnus angustifolia);

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

REASON: The system of categorizing noxious weeds was determined to be inadequate to address invasive plants in Montana. Priority listing of noxious weeds was deemed more responsive to the state's weed listing needs. As regulated plants, Priority 3 listing provides an opportunity to prevent future sale of invasive plants and expand education efforts. This provides authority for control in specific sites while not burdening Montana citizens with enforcement in historically beneficial niches or imposing economic disadvantage on Montana producers. It was concluded that revision of the categories would allow recognition of plants as invasive and requiring management without listing as noxious. Priority 3 encompasses plants that currently infest Montana. Montana Department of Agriculture received a petition to list cheatgrass (Bromus tectorum) from the USDA Forest Service out of Missoula; in previous years, MDA had elected to not list cheatgrass as there was not a clear fit in the existing category system despite its aggressive invasiveness and destructive nature. MDA received a petition from the Montana Native Plant Society requesting that Russian olive (Elaeagnus angustifolia) be considered for listing as noxious. As with cheatgrass, MDA had received petitions for Russian olive in the past, but had no practical system by which to address a plant that was beneficial in one setting and highly invasive in another. Priority 3 will provide for special management areas to afford for the control of Russian olive in areas where it is a threat. Hydrilla (Hydrilla verticillata) is not known to be in Montana waters at this point, but due to the highly invasive behavior of the plant, its presence and expanding population in Idaho and the threat as an incidental in illegal aquarium releases, it is crucial to take advantage of the sale restrictions and public education opportunities listing it as Priority 3.

Financial impact: Initially, prohibiting sale of Russian olive and hydrilla will result in a loss for the nursery and aquarium trade, but this will be short-lived as noninvasive plants are substituted. The cost to the state by uncontrolled aquatic and riparian invaders is estimated to be far more injurious than the loss of revenue for current trade, and the additional cost for mandated control of Russian olive in riparian areas. Listing cheatgrass as regulated will see little increased cost for control, and listing it may well provide external revenue sources to assist landowners who wish to control it. Montana's seed industry is protected from unreasonable negative financial impact by listing it as regulated instead of noxious. Conceivably, by listing the plants as regulated, the cost of control will gradually slow as further spread is prevented through education and awareness.

4. The department proposes to repeal the following rules:

4.5.202 CATEGORY 1

AUTH: 7-22-2101, MCA

IMP: 7-22-2101, 80-7-802, MCA

4.5.203 CATEGORY 2

AUTH: 7-22-2101, 80-7-802, MCA

IMP: 7-22-2101, MCA

4.5.204 CATEGORY 3

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

4.5.205 CATEGORY 4 - WATCH LIST

AUTH: 80-7-802, MCA

IMP: 7-22-2101, MCA

REASON: The system of categorizing noxious weeds was determined to be inadequate to invasive plants in Montana.

There will be no financial impact.

5. Concerned persons may submit their data, views, or arguments concerning the proposed action either orally or in writing at the hearing. Written data, views, or arguments may be submitted to: Cort Jensen at the Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; telephone (406) 444-3144; fax: (406) 444-5409; or e-mail: agr@mt.gov, and must be received no later than 5:00 p.m. on December 10, 2009.

6. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.

7. The Department of Agriculture maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request which includes the name, e-mail, and mailing address of the person and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; fax: (406) 444-5409; or e-mail: agr@mt.gov or may be made by completing a request form at any rules hearing held by the Department of Agriculture.

8. An electronic copy of this Notice of Proposed Adoption is available through the department's web site at www.agr.mt.gov, under the Administrative Rules section. The department strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

DEPARTMENT OF AGRICULTURE

/s/ Ron de Yong /s/ Cort Jensen

Ron de Yong, Director Cort Jensen, Rule Reviewer

Certified to the Secretary of State, November 2, 2009.