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Montana Administrative Register Notice 36-22-147 No. 22   11/26/2010    
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BEFORE THE BOARD OF LAND COMMISSIONERS AND

THE DEPARTMENT OF NATURAL RESOURCES

AND CONSERVATION OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 36.11.402 and adoption of New Rules I and II regarding forest management rules for implementing conservation easements and habitat conservation plans

 

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NOTICE OF PUBLIC HEARING  ON PROPOSED AMENDMENT AND ADOPTION

 

 

To:       All Concerned Persons

 

            1.  On December 16, 2010 at 2:00 p.m., the Department of Natural Resources and Conservation will hold a public hearing in the Clark Fork Conference Room, 2705 Spurgin Road, Missoula, Montana, to consider the proposed amendment and adoption of the above-stated rules.

 

            2.  The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the agency no later than 5:00 p.m. on December 6, 2010, to advise the department of the nature of the accommodation that you need.  Please contact Mike O'Herron, Department of Natural Resources and Conservation, 2705 Spurgin Road, Missoula, MT; telephone (406) 542-4302; fax (406) 542-4242;  e-mail moherron@mt.gov.

 

            3.  The rule as proposed to be amended provides as follows, stricken matter interlined, new matter underlined:

 

            36.11.402  GENERAL APPLICABILITY  (1)  The state forest land management rules, ARM 36.11.403 through 36.11.450, in this subchapter shall apply to forest management activities on all forested state trust lands administered by the department.

            (2)  The department shall not require that ARM 36.11.403 through 36.11.450 be implemented on projects that, prior to the adoption of the rules, have gone through the MEPA public scoping process, except the department shall review those timber sales where old growth was proposed for harvesting that were developed using the state forest land management plan biodiversity guidance of 1998 to ensure compliance with ARM 36.11.404 through 36.11.429.

 

            AUTH:  77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA

            IMP:  77-5-116, 77-5-204, 77-5-206, 77-5-207, MCA

 

REASONABLE NECESSITY:  The amendment to ARM 36.11.402 is necessary to remove obsolete language.  The language was originally inserted into the rule to identify those already ongoing projects that would have been affected by the rulemaking when the forest management rules were originally adopted in 2003.

 

            4.  The rules proposed to be adopted provide as follows:          

           

            NEW RULE I  LANDS SUBJECT TO A HABITAT CONSERVATION PLAN

            (1)  For trust land parcels subject to a habitat conservation plan contractually entered by the department and the United States Fish and Wildlife Service (USFWS) pursuant to Section 10 of the Endangered Species Act (ESA), the department must implement the conservation strategies identified in the habitat conservation plan.

            (2)  If there are conflicts between the conservation strategies in the habitat conservation plan and the administrative rules for forest management in this subchapter, the department must follow the conservation strategies in the habitat conservation plan or incidental take permit.

 

            AUTH:  77-1-202, 77-1-209, 77-5-201, 77-5-204, MCA

            IMP:  77-1-202, 77-1-203, 77-1-301, 77-5-103, 77-5-116, 77-5-204,

            77-5-206, 77-5-207, MCA

           

            NEW RULE II  CONSERVATION EASEMENTS  (1)  For trust land parcels that have an appurtenant conservation easement that addresses conservation strategies or stipulations for forest management, the department must follow the conservation strategies or stipulations of the conservation easement. 

            (2)  If there are conflicts between the conservation strategies or stipulations of the conservation easement and the administrative rules for forest management in this subchapter, the department must follow the conservation strategies or stipulations of the conservation easement.

           

            AUTH:  77-5-201, 77-5-204, MCA

            IMP:   77-1-202, 77-1-203, 77-1-301, 77-5-103, 77-5-116, 77-5-204,

            77-5-206, 77-5-207, MCA

 

REASONABLE NECESSITY:  New Rules I and II are necessary to acknowledge that in addition to the forest management rules (ARM 36.11.401 through 36.11.450), the department is legally bound to implement conservation strategies or stipulations that are variations on the rules and that supplement the rules. Those include, but are not limited to, conservation easements appurtenant to the title or an Endangered Species Act (ESA) Section 10 habitat conservation plan to which the department is contractually bound.  The department is managing state trust lands in a regulatory environment within which varying conservation strategies or stipulations apply.

 

            5.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Mike O'Herron, Department of Natural Resources and Conservation, 2705 Spurgin Road, Missoula, MT 59801; telephone (406) 542-4302; fax (406) 542-4242; e-mail moherron@mt.gov, and must be received no later than 5:00 p.m. on January 6, 2011.

 

            6.  Mike O'Herron, Department of Natural Resources, has been designated to preside over and conduct the public hearing.

 

            7.  An electronic copy of this Notice of Public Hearing on Proposed Amendment and Adoption is available through the department's web site at http://www.dnrc.mt.gov.  The department strives to make the electronic copy of this Notice of Public Hearing on Proposed Amendment and Adoption 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.

 

            8.  The department 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 that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding conservation districts and resource development, forestry, oil and gas conservation, trust land management, water resources, or a combination thereof.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be sent or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

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

 

DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION

 

 

/s/  Mary Sexton                                                         /s/  Mark Phares

MARY SEXTON                                                        MARK PHARES

Director                                                                      Rule Reviewer

Natural Resources and Conservation

 

 

Certified to the Secretary of State on November 15, 2010.

 

 

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