A legislatively mandated program aimed at enhancing protection from invasive mussels entering the Flathead Basin is beset with challenges as the group charged with implementing the plan has had its budget dissolved, while two state agencies say its key provisions cannot legally be implemented.
As part of House Bill 622, a bill introduced by four Flathead lawmakers, the Legislature gave the Flathead Basin Commission authority to establish and manage the Upper Columbia aquatic invasive species (AIS) pilot program. The program would add more certification stations in the Flathead Basin, track vessels that require decontamination, and add the use of automated inspection and detection devices.
The pilot program would have been paid for by requiring boat owners launching boats in the basin to purchase a sticker, which was expected to raise between $1 million and $1.5 million and pay for additional inspection stations.
The measure also increased state expenditures to combat aquatic invasive species from less than $1 million to more than $6.5 million annually.
But Montana Fish, Wildlife and Parks officials said the legislation as written did not provide the agency with the authority to write the rules that would require boat owners to purchase a sticker under the pilot program.
FWP’s chief legal counsel, Becky Dockter, said the bill’s language doesn’t provide the department with the legislative authority to create a mandatory program, nor does it provide for any penalties should boaters refuse to obtain the sticker.
“FWP does not have the authority to set fees such as those contemplated here — the legislature does,” Dockter wrote in a memo to the Flathead Basin Commission. “In fact, there was a failed attempt by multiple agencies to request a legislative requirement for the mandatory purchase of a sticker to fund AIS efforts. The AIS Act does recognize that the FBC may ‘implement a boat sticker program to raise funds for prevention efforts,’ but nothing in the law indicates that this could be anything other than a voluntary program.”
According to Dockter, there is no corresponding provision requiring the purchase of a sticker and no penalty established if a person chooses not to purchase the sticker. Because of this, FWP does not have the authority to establish a mandatory, fee-based program, nor could it enforce such a program.
Rep. Mark Noland, R-Bigfork, who helped carry HB 622 during Montana’s 2017 Legislature, said it was lawmakers’ intent to pay for the pilot program by requiring boat owners launching boats in the Flathead basin to purchase a sticker.
“The intent was to allow the Flathead Basin Commission to fund the program through a sticker program. That was the intent,” Noland said during a conference call Dec. 18, which included officials with FWP and the Montana Department of Natural Resources and Conservation, as well as members of the Flathead Basin Commission. “We wanted to set this up to be a success and not a failure.”
Both locally and statewide, efforts to reduce the risk of aquatic invasive species spreading through Montana’s water bodies have ramped up in response to the positive detection last fall of invasive mussel larvae east of the Continental Divide in Tiber Reservoir, as well as their suspected presence in Canyon Ferry Reservoir and the Missouri River near Townsend.
The Flathead Basin Commission’s efforts to curb the threat of invasive mussels entering Montana have included funding watercraft inspection stations on the Blackfeet Indian Reservation, which proved effective.
So far, the traces of contamination are restricted to the Missouri River Basin, but the likelihood of mussels hitchhiking on the hulls of boats or in bilge water or cloistered away in irrigation equipment has risen to a fever pitch. The threat of mussel infestation hits especially close to home for those working to protect the waters of Flathead Lake and its surrounding network of rivers and creeks, and it comes to rest at the doorstep of the Columbia River Basin — the only major watershed in the West still believed to be free of quagga and zebra mussels.
The Flathead Basin Commission, an organization created by the Montana Legislature and made up of state and federal representatives as well as other local stakeholders, has been at the vanguard of efforts to combat invasive mussels.
Recently, however, the state DNRC eliminated funding for the water-quality watchdog group, saying the cuts were necessary to backfill a sizable budget gap.
Caryn Miske, executive director of the Flathead Basin Commission and the group’s only paid full-time staff member, is currently on administrative leave, further muddying the waters.
Jan Metzmaker, chair of the Flathead Basin Commission, said she hopes to gain clarity from the Fish and Wildlife Commission in February.
“The law is telling us to do one thing and the state is telling us to do another, and the legislators were very clear about what their intent was,” she said. “All we’re really asking for is some clarification. And all we’re trying to do is add a level of protection to keep these things out of the Flathead Basin.”
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