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In the matter of the adoption of New Rules I through III delegating commission authority to the department to close public waters in the event of a fire emergency
1. On June 12, 2008, the Fish, Wildlife and Parks Commission (commission) proposes to adopt the above-stated rules.
2. The commission will make reasonable accommodations for persons with disabilities who wish to participate in the rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, please contact the commission no later than June 2, 2008, to advise us of the nature of the accommodation that you need. Please contact Jessica Snyder, Fish, Wildlife and Parks, P.O. Box 200701, Helena, MT 59620-0701; telephone (406) 444-4594; fax (406) 444-7456; e-mail jesnyder@mt.gov.
3. The proposed new rules provide as follows:
NEW RULE I DEPARTMENT'S AUTHORITY TO CLOSE PUBLIC WATERS DUE TO FIRE EMERGENCY (1) The commission authorizes the department to adopt temporary emergency rules to close public waters to public use as provided in [NEW RULE II].
(2) Public use of the water means boating, floating, swimming, fishing, and any other public occupation of the waters.
(3) The commission authorizes the department to reopen public waters closed by temporary emergency rule as provided in [NEW RULE II].
IMP: 2-4-303, 87-1-301, MCA
NEW RULE II FIRE CLOSURE CRITERIA (1) The department may, pursuant to [NEW RULE I], adopt temporary emergency rules under the following criteria.
(a) The department receives written request for closure of public waters from the interagency fire management team or similar authority that provides the description of where to implement the fire closure.
(b) The department determines that firefighting efforts on or near the water creates imminent peril to the public health, safety, or welfare.
(2) The department may reopen the waters by repealing a temporary emergency rule when it determines that firefighting efforts on or near the water have subsided to the extent that imminent peril to the public health, safety, and welfare no longer exists.
IMP: 2-4-303, 87-1-301, MCA
NEW RULE III NOTIFICATION OF FIRE CLOSURE AREAS (1) Prior to or simultaneously with the effective date of the fire closure the department shall:
(a) notify the commission;
(b) post notice of the fire closure on the agency web site;
(c) post notice of the fire closure within and near the affected area; and
(d) send press releases regarding the fire closure to newspapers and media outlets having general distribution in the affected watershed or water body.
IMP: 2-4-303, 87-1-301, MCA
4. The proposed rules are necessary to promote public safety and prevent delay of firefighting efforts. Since 2003, firefighting agencies have requested that the commission adopt seven different emergency rules closing public waters due to firefighting efforts for forest fires. The rule adoptions were necessary so that firefighting aircraft could dip or load water in public waters without the risk of injury or death to people using the waters. Closing the public waters also decreased the risk to flight crews who would have been subjected to additional danger if they had needed to maneuver their aircraft to avoid recreators.
In order to close a public water using the existing process, a presiding department official must contact a quorum of commissioners so that the commission can adopt the emergency closure. The commission's concern is that, during an emergency, the department may not be able to contact a quorum of commissioners. Adoption of an emergency rule would be delayed until enough commissioners could be contacted. If this circumstance occurred, firefighting efforts could be delayed, or the public could be endangered. Since it is unlikely that the commission would refuse to adopt a temporary emergency rule when the public health, safety, and welfare is jeopardized due to firefighting efforts, the commission believes it is logical and necessary to delegate the commission authority to the Director of the Department of Fish, Wildlife and Parks to adopt emergency rules closing public waters when aircraft load water to fight fires. By delegating this authority, the commission is assured that the public safety will be provided for and firefighting efforts will be expedited when a fire emergency occurs.
5. Concerned persons may submit their data, views, or arguments concerning the proposed adoption in writing to Jessica Snyder, Legal Unit, P.O. Box 200701, Helena, MT 59620-0701, telephone (406) 444-4594, fax (406) 444-7456, or e-mail them to jesnyder@mt.gov. Any comments must be received no later than April 24, 2008.
6. If persons who are directly affected by the proposed adoption wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments they have to Jessica Snyder at the above address. A written request for a hearing must be received no later than April 24, 2008.
7. If the commission receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected has been determined to be greater than 25 people based on the fact that every Montana citizen has access to public waters that could be closed in a fire emergency.
8. The department maintains a list of interested persons who wish to receive notice of rulemaking actions proposed by this department or commission. Persons who wish to have their name added to the list shall make written request which includes the name and mailing address of the person to receive the notice and specifies the subject or subjects about which the person wishes to receive notice. Such written request may be mailed or delivered to Fish, Wildlife, and Parks, Legal Unit, P.O. Box 200701, 1420 East Sixth Avenue, Helena, MT 59620-0701, faxed to the office at (406) 444-7456, or may be made by completing the request form at any rules hearing held by the department.
9. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.
Fish, Wildlife and Parks
/s/ Rebecca Jakes Dockter
Department of Fish, Wildlife
Certified to the Secretary of State March 17, 2008
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