Montana State Biological Resource Considerations (12-MT-a)
State Biological Resource Considerations Process
12-MT-a.1 - Consult Regarding Potential Impacts on Fish and Wildlife
Building with Wildlife, a guide developed by private landowners, professors, and wildlife agencies, recommends developers work with "natural resource professionals" as early as possible in the planning process. The guide specifically mentions the biologists in Montana Fish, Wildlife & Parks as professionals who can help developers recognize the wildlife habitats within the project area and develop the best approach for avoiding or mitigating any damage to local ecosystems.
12-MT-a.2 - Will the Project Be Located on Montana Fish, Wildlife, & Parks Land?
The Montana-specific flora and fauna rules outside the federal rules only concern projects on Montana Department of Fish, Wildlife, and Parks (FWP) land. Special rules apply to any entity that utilizes land under the control, administration, and jurisdiction of the FWP for any form of compensation. ARM 12.14.101. This is considered "commercial use" and may require a permit.
12-MT-a.3 - Continue with Project
If the project will not be located on FWP land, the developer may continue with the project, although the project will still be subject to federal flora and fauna rules.
12-MT-a.4 - Will this Activity Pursue a Utility Easement or ROW?
Under ARM 12.14.110, the commercial use rules do not apply to "the leasing of department land for...utility easements, and granting of right-of-way." These specific types of commercial uses are governed by the Montana Fish, Wildlife & Parks' "land lease-out policy."
12-MT-a.5 - FWP Land Lease-Out Process
(The FWP Land Lease-Out Process flowchart has yet to be created)
12-MT-a.6 - Restricted Use Permit Application, FWP Requested Information, Fees
FWP only administers two types of commercial use permits: fishing access site permit and restricted use permit.
General rules applicable to the commercial use permit (ARM 12.14.120):
(4) A commercial use permit is not a property right and may be revoked, amended, or suspended at any time for cause. Causes for revoking, amending, or suspending a permit include but are not limited to the following:
- (a) failure to comply with the commercial use rules;
- (b) failure to pay required permit fees;
- (c) falsifying records of use;
- (d) failure to comply with the terms of the permit;
- (e) failure to comply with state or federal rules or laws pertaining to resource and land management;
- (f) failure to obtain other required state or federal permits;
- (g) impacts on resources or the public; or
- (h) changing conditions or management objectives at a site.
(6) The department may require commercial users to report their use of department land. The department may require commercial users to maintain and have on their person for department inspection a logbook for recording commercial use. The department shall include specific reporting requirements as permit or contract stipulations.
(7) A commercial use permit may only be used by the holder of the permit. The permit holder may not sell, lease, or rent the permit, or otherwise receive compensation from another person for the opportunity to use the permit. The permit holder may hire or contract persons to provide authorized services provided that said persons do not recruit clients, make agreements with clients concerning monetary consideration or services provided, collect fees from clients, or advertise any business other than the permitted business when conducting the permitted use. The permit holder is responsible for ensuring that the persons hired or contracted comply with the terms of the permit.
Rules specific to the Restricted Use Permit (ARM 12.14.145):
(1) A restricted use permit application must be submitted to the regional office that oversees the site or sites where the use would occur. If use is proposed for sites located in more than one department administrative region, the application may be submitted to one of the regional offices and the department may issue a single permit to authorize the use.
(2) The completed application should be submitted at least 45 days before the use is intended to begin or at least ten days before a special event, filming activity, or incidental commercial use lasting less than five days. The time period required to process applications begins when the applicant has submitted all of the required information. The department may process completed applications received after these time periods on a case-by-case basis. The department may require additional time to process an application if the department determines that an environmental analysis is required.
(3) The department may require the following when applying for a restricted use permit:
- (a) a completed restricted use permit application;
- (b) an outfitter or guide license number if providing angling services;
- (c) an automated license system number;
- (d) permit fee;
- (e) deposit or damage security bond;
- (f) proof of insurance that the department judges sufficient to protect the public and the state of Montana;
- (g) proof of workers’ compensation and/or an independent contractor exemption certificate;
- (h) information explaining how the proposed use would benefit the public’s resources or the public’s enjoyment of the site; and
- (i) other relevant information in sufficient detail to allow the department to evaluate the nature and impact of the proposed activity, including measures the applicant will use to prevent or mitigate adverse impacts.
12-MT-a.7 - Review Application Materials
According to ARM 12.14.150:
(1) The department has discretion over whether to issue a restricted use permit. Permitting decisions are based on the following factors to the extent that they are relevant:
- (a) conformance with laws, rules, policies, management plans, and land use plans;
- (b) contribution to the overall mission, goals, and objectives of the site;
- (c) public safety;
- (d) conflicts with other users in regard to type of use, timing, duration, location, site capacity, and other similar considerations;
- (e) resource impacts and protection;
- (f) extent to which the public interest is served;
- (g) effects on adjacent lands;
- (h) whether in the past the applicant complied with the terms of his/her permit or other authorization from the department and other agencies;
- (i) whether the department has the fiscal and human resources to oversee the proposed use; and
- (j) such other circumstances that the department finds appropriate.
(2) The availability, terms, and conditions of a restricted use permit may vary based on the regulations and management plan in place at the site where the use would occur. Permitting decisions for commercial use at a wildlife management area must comply with a statewide plan for authorizing and administering commercial use at wildlife management areas. The statewide commercial use plan for wildlife management areas shall:
- (a) identify the types of commercial use that may be authorized;
- (b) establish the general terms and conditions that may be authorized; and
- (c) establish the methods for allocating commercial use permits.
(3) The department’s statewide river recreation rules shall govern permitting decisions that would ration, allocate, or otherwise restrict water-based outfitting and guiding opportunities on rivers and fishing access sites. This does not include permitting decisions 10 Commercial Use Administrative Rules when the applicant or permit holder has violated the terms of a permit or violated department rules or regulations.
(4) Upon adoption of these rules, the department may continue to issue permits that were established prior to the adoption of these rules. The department shall administer these permits consistent with these commercial use rules.
12-MT-a.8 - Did FWP Approve the Application?
12-MT-a.9 - Appeal in Writing to Director
According to ARM 12.14.150:
A person who has been denied a restricted use permit or a person whose commercial use permit has been suspended or cancelled may appeal the permitting decision in writing to the director within 30 days of the date of mailing of the notice of the permitting decision. Persons not appealing within 30 days have waived their right to appeal.
The director or the director’s designee shall issue a written decision on the appeal. The director's decision is final.
12-MT-a.10 - Restricted Use Permit
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- ARM 12-14-101 - Commercial Use Permitting Requirements: Definitions
- ARM 12-14-110 - Commercial Use Permitting: Exceptions to Applicability
- ARM 12-14-120 - Commercial Use Permitting: Permits
- ARM 12-14-145 - Commercial Use Permitting: Restricted Use Permit Application Process
- ARM 12-14-150 - Commercial Use Permitting: Restricted Use Permitting Decisions
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