Montana Administrative Register Notice 4-14-191 No. 2   01/28/2010    
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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









            TO:  All Concerned Persons


            1.  On November 12, 2009, the Montana Department of Agriculture published MAR Notice No. 4-14-191 relating to the public hearing on the proposed adoption and repeal of the above-stated rules at page 2071 of the 2009 Montana Administrative Register, Issue Number 21.


            2.  On December 4, 2009, the Montana Department of Agriculture held a public hearing on the proposed adoption and repeal of the above-stated rules.


3.  The department has thoroughly considered the letters and calls received from 25 commentors.  A summary of the comments received and the department's responses follows:


COMMENT #1:  Eleven individual commentors, including nine associations, (five of them located in Philips County) oppose the listing of Russian olive trees as a regulated plant because of their beneficial aspects (windbreaks, wildlife-especially birds, scenic beauty) and because they are one of the few trees that can grow in the arid parts of Montana.


            RESPONSE #1:  The department is removing Russian olive trees from the current rule in order to seek more information from all of the county commissioners.  The rule did not require people to destroy or remove their Russian olive trees.  The rule would have prevented the sale or intentional spread of the trees.


COMMENT #2:  Six commentors request a dual listing of Russian olive trees as beneficial in some counties (and thus no ban on sales into those counties).


RESPONSE #2:  The department is removing Russian olive trees from the current rule in order to seek more information from all of the county commissioners.  Dual listing is something that may be proposed in the future.


COMMENT #3:  One commentor requested that education be added to all of the categories as a management component to all the categories.


RESPONSE #3:  The department considers weed education to be a part of elimination and containment and not a separate goal.


COMMENT #4:  Two associations (both out of Missoula county) expressed concern that county level control of which weeds to prioritize would be taken away by the use of the word "shall" in 2A and 2B and instead would have the department use "recommends".


RESPONSE #4:  The "shall" only requires that the listed plants be included in a county's management plan not that the counties adopt a particular priority (say over other county listed noxious weeds) or management strategy.  "Recommends" would allow a county to leave off a listed weed from their management plan entirely, which is not what the department believes serves the best interests of the state as a whole.


COMMENT #5:  One commentor felt that the department's "super" prioritization of 1A and 1B should mean more money for the counties that have to deal with them.


RESPONSE #5:  The department does want these plants prioritized above the 2A and 2B, as they represent weeds that have not become established in the state.  County projects dealing with the elimination or containment of 1A or 1B plants will be given a priority on noxious weed trust fund money.


COMMENT #6:  Three commentors expressed concern that the department was dictating when eradication and containment had to occur under 1A and 1B.


RESPONSE #6:  The department believes the long term cost of not stopping the introduction or spread of weeds that are uncommon or not present currently in Montana would be catastrophic.  The department believes that early and constant attention on any occurrence of 1A and 1B weeds must occur to avoid them becoming established in Montana as a continual problem.


COMMENT #7:  One commentor (representing Valley County Weed District) feels that there is no need for any rule change.


RESPONSE #7:  The department disagrees with this commentor for the reasons stated in the original notice of this rule change.


COMMENT #8:  Twelve commentors (including five representing various associations) support the rules as proposed.


RESPONSE #8:  No response is necessary to this comment.


COMMENT #9:  Two associations (representing Missoula County) oppose the rules and want the county to have the full power to prioritize all weeds.


RESPONSE #9:  A coordinated state plan is necessary to guide the use of the noxious weed trust fund and provide the best possible protection to the state as a whole.  Counties are given wide discretion in adding additional weeds to their county list and in deciding what to do about listed weeds (eradication or containment) in the 1A and 1B sections and total discretion in how to manage 2A and 2B weeds (other than to ignore them or just not list them).


COMMENT #10:  Two associations (representing Missoula County) want information about resources and support for the weed districts that enables landowners to be more effective.


RESPONSE #10:  The department provides information and advice to any person or entity that requests it, but does not place them in rule as the administrative rules serve a regulatory function as opposed to an informational one.  The department does not have authority to provide financial support to individual land owners to deal with noxious weeds.


COMMENT #11:  One association (representing Blaine County) worries about the additional cost of destroying Russian olive trees.


RESPONSE #11:  The department is removing Russian olive trees from the current rule in order to seek more information from all of the county commissioners.


4.  The department has adopted ARM New Rule I, 4.5.206, New Rule II, 4.5.207, New Rule III, 4.5.208, New Rule IV, 4.5.209, and repealed 4.5.202, 4.5.203, 4.5.204, and 4.5.205 exactly as proposed.


5.  The department in response to comments adopts New Rule V as follows, new matter underlined, deleted matter interlined:


NEW RULE V  (4.5.210)  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 department recommends research, education, and prevention to minimize the spread of the regulated plant:

(a)  Cheatgrass (Bromus tectorum);

(b)  Russian olive (Elaeagnus angustifolia);

(cb)  Hydrilla (Hydrilla verticillata).







/s/ Joel Clairmont on behalf of                         /s/ Cort Jensen                                       

Ron de Yong, Director                                        Cort Jensen, Rule Reviewer


Certified to the Secretary of State, January 19, 2010.


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