ENV-40-12-00002-E Special Fishing Regulations for the Salmon River Known as the "Lower Fly Fishing Area"

10/3/12 N.Y. St. Reg. ENV-40-12-00002-E

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 40

October 03, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-40-12-00002-E

Filing No. 944

Filing Date. Sept. 13, 2012

Effective Date. Sept. 13, 2012

Special Fishing Regulations for the Salmon River Known as the "Lower Fly Fishing Area"

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Part 10 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-0305, 11-1301 and 11-1303

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The lower fly fishing catch and release area on the Salmon River is scheduled to open to fishing on September 15, 2012. This same portion of the Salmon River is a staging area for various species of fish, including Chinook and coho salmon as they prepare to enter the hatchery. In light of the drought conditions, the department has several concerns. First, the fish mortality rate associated with catch and release fishing, which is normally low, will increase during drought conditions. Warmer water temperatures and lower water levels place additional stress on fish and increase the likelihood that fish will not survive after catch and release. An increase in the fish mortality rate would be contrary to the purpose of catch and release fishing. Second, the low water levels and high concentrations of fish, conditions currently present in this portion of the Salmon River are not conducive to ethical fly fishing and would likely result in numerous fish being illegally hooked (snagged). Third, and most importantly, the department is responsible for ensuring that adequate numbers of fish will enter the department’s hatchery on the Salmon River in order to provide eggs for the hatchery operations that support the Lake Ontario and tributaries fishery. If the fishery were to remain open, the first two concerns noted above could interfere with the department’s ability to obtain sufficient numbers of fish at the hatchery.

In response to this situation, the department is delaying the opening of the lower fly fishing area until October 31, 2012. The egg take at the Salmon River Hatchery is scheduled to begin on or around October 9, 2012, so delaying the opening should help get adequate numbers of fish to enter the hatchery. In addition, water temperatures should be lower and, with some precipitation, base flows may be higher. If, prior to October 31, 2012, precipitation in the Salmon River system is sufficient to restore the base flow back to “normal” levels the department reserves the right to rescind this emergency regulation and reopen the lower fly fishing area.

Subject:

Special fishing regulations for the Salmon River known as the "Lower Fly Fishing Area".

Purpose:

To prevent salmon mortality due to drought conditions and to improve returns to the Salmon R. Hatchery to meet egg quota.

Text of emergency rule:

Section 10.2 of Title 6 of the Official Compilation of New York Codes, Rules and Regulations, entitled Boundary water fishing regulations, is amended to read as follows:

Subdivision 10.2(g) of 6 NYCRR is amended to read as follows:

(g) Additional special fishing regulations for the Salmon River, Oswego County, from County Route 52 bridge upstream to Lighthouse Hill Reservoir. No person may fish at any time except from County Route 52 bridge in Altmar upstream to a marked boundary at Beaverdam Brook from [September 15] October 31 through May 15, and from a marked boundary upstream of the New York State Salmon River Fish Hatchery property upstream approximately 0.6 mile to a marked boundary at the Lighthouse Hill Reservoir tailrace from April 1 through November 30. No person, while fishing in these places during these times, shall:

(1) fish from one-half hour after sunset to one-half hour before sunrise;

(2) use fishing tackle other than a traditional fly fishing rod, reel and line;

(3) use other than single artificial flies, including weighted flies, which are permitted;

(4) use a weighted fly with more than a one-eigth ounce added weight;

(5) add weight to the line, leader, swivels or artificial fly in any manner such that the weight hangs lower than the attached fly when the line or leader is suspended vertically from the rod;

(6) use less than 20 feet of floating, sinking, or combination floating/sinking flyline, or shooting head immediately behind the leader and in front of any running line or other backing;

(7) use supplemental weight such that the weight is the primary means of propelling the cast rather than the fly line or shooting head;

(8) use a hook with more than one hook point or with a gap of greater than one-half inch;

(9) use a leader, including tippet, measuring in excess of 15 feet;

(10) place additional weight on the line or leader, whether fixed or sliding at a distance exceeding four feet from the fly; and

(11) fail to immediately release all fish without unnecessary injury.

This notice is intended

to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires December 11, 2012.

Text of rule and any required statements and analyses may be obtained from:

Shaun Keeler, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, [phone], email: [e-mail]

Additional matter required by statute:

A programmatic environmental impact statement is on file with the Department of Environmental Conservation.

Regulatory Impact Statement

1. Statutory authority: Sections 11-0303 and 11-0305 of the Environmental Conservation Law (ECL) authorize the Department of Environmental Conservation (department) to provide for the management and protection of the State's fisheries resources, taking into consideration ecological factors, public safety, and the safety and protection of private property. Sections 11-1301 and 11-1303 of the ECL empower the department to fix by regulation open seasons, size and catch limits, and the manner of taking of all species of fish, except certain species of marine fish (listed in section 13-0339 of the ECL), in all waters of the State.

2. Legislative objectives: Open seasons, size restrictions, daily creel limits, and restrictions regarding the manner of taking fish are the basic tools used by the department in achieving the Legislature's intent. The purpose of setting seasons is to prevent the over-exploitation of fish populations during vulnerable periods, such as during spawning, thereby insuring healthy fish populations. Size limits are necessary to maintain quality fisheries and to insure that adequate numbers survive to spawning size. Creel limits are used to distribute the harvest of fish among many anglers and angling days and to optimize resource benefits. Regulations governing the manner of taking fish enhance the quality of the recreational experience, provide for a variety of harvest techniques and angler preferences, and limit exploitation. Catch and release fishing regulations are used in waters capable of sustaining outstanding growth and survival of fish to reduce fishing mortality to the lowest possible level. Reduction of fishing mortality results in a larger population of desirable-sized fish and increases the quality of the recreational opportunities for anglers.

3. Needs and benefits: Subdivision 10.2(g) of 6 NYCRR designates catch and release, fly-fishing only areas on the Salmon River. The lower fly fishing catch and release area, which is 3 miles in length, is located in that portion of the Salmon River that lies immediately downstream of the Salmon River Hatchery and upstream of the County Rt. 52 bridge in Altmar. The upper boundary of the area is just downstream from Beaverdam Brook. Fish gain access to the department's Salmon River Hatchery from the Salmon River through Beaverdam Brook.

The Salmon River Reservoir is managed through a license from the Federal Energy Regulatory Commission (FERC) to provide year round base flows to the lower 18 miles of the Salmon River which is accessible to lake-run trout and salmon. The prescribed base flow for the fall salmon season is 335 cubic feet per second (cfs). The recent drought has left the reservoir at a near historic low level (14 feet below dam crest on 9/05/12) with no significant rain in the forecast. As a result, the executive committee of the Salmon River Flow Management Team recently agreed to conserve water in the reservoir and to keep the base flow in the Salmon River at 185 cfs (summer flow level), instead of raising it to the 335 cfs which is prescribed for this time of year.

The lower fly fishing, catch and release area on the Salmon River is scheduled to open to fishing on September 15, 2012. This same portion of the River is a staging area for various species of fish, including Chinook and coho salmon as they prepare to enter the hatchery. Salmon are already present in the staging area. In light of the drought conditions noted above, the department has several concerns. First, the fish mortality rate associated with catch and release fishing, which is normally low, will increase during drought conditions. Warmer water temperatures and lower water levels place additional stress on fish and increase the likelihood that fish will not survive after catch and release. An increase in the fish mortality rate would be contrary to the purpose of catch and release fishing. Second, the low water levels and high concentrations of fish, conditions currently present in this portion of the Salmon River are not conducive to ethical fly fishing and would likely result in numerous fish being illegally hooked (snagged). Third, the department is responsible for ensuring that adequate numbers of fish will enter the department's hatchery on the Salmon River in order to provide eggs for the hatchery operations that support the Lake Ontario and tributaries fishery. If the fishery were to remain open, the first two concerns noted above could interfere with the department's ability to obtain sufficient numbers of fish at the hatchery.

In response to this situation, the department is delaying the opening of the lower fly fishing area until October 31, 2012. The egg take at the Salmon River Hatchery is scheduled to begin on or around October 9, 2012, so delaying the opening should help get adequate numbers of fish to enter the hatchery. In addition, water temperatures should be lower and, with some precipitation, base flows may be higher.

Although the department is hopeful that conditions will return to levels that will allow fishing to resume in this area.

4. Costs: Enactment of the emergency regulation described herein governing fishing will not result in increased expenditures by the State, local governments, or the general public.

5. Local government mandates: These amendments of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district, or fire district.

6. Paperwork: No additional paperwork will be required as a result of these changes in regulations.

7. Duplication: There are no other State or federal regulations which govern the taking of fish.

8. Alternatives: The alternative to the regulation would be to retain the current fishing regulation, which the department does not find acceptable. In the absence of the change, adequate numbers of fish may not reach the Salmon River Hatchery for egg taking operations, fish may be vulnerable to large scale catch and release mortality, and a high concentration of fish would be exposed to conditions not conducive to ethical angling (i.e., snagging). A similar drought scenario played out in 2007 and the department was not able to obtain adequate numbers of fish at the hatchery. As a result the department was forced to travel to remote streamside locations in an effort to get eggs, resulting in significant additional expenditures of both time and money.

9. Federal standards: There are no minimum Federal standards that apply to the regulation of sportfishing.

10. Compliance schedule: This regulation will take effect immediately upon filing with the Department of State. Compliance with the closed period will be required as of September 15, 2012.

Regulatory Flexibility Analysis

1. Effect of rule: The rule is intended to protect brood fish staging below the Salmon River Hatchery and to avoid potential catch and release mortalities that would likely occur due to the low flow, high water temperature situation that currently exists. The rule would also eliminate unscrupulous fishing activity (i.e., snagging) that would likely occur given the current high density of fish in the area and the low flows.

2. Compliance requirements: The area would be closed to fishermen from September 15th (the scheduled opening day) until October 31st.

3. Professional services: NA

4. Compliance costs: NA

5. Economic and technological feasibility: A 2011 creel survey on the Salmon River estimated 112,109 angler trips for the entire river during the September through November time period. The fly fishing catch and release areas (upper and lower sections combined) accounted for about 10 percent of the overall fishing effort.

6. Minimizing adverse impact: The lower fly fishing catch and release fishing area is 1/4 of a mile in length which leaves anglers with approximately 15 miles of river to fish, including the upper fly fishing catch and release fishing area. The upper fly fishing catch and release fishing area is located upstream of the Salmon River Fish Hatchery, is open to fishing from April 1 through November 30, and provides anglers with a similar fishing opportunity as the lower fly fishing catch and release fishing area. The opening of the lower fly fishing catch and release fishing area is delayed only as long as is estimated to be necessary. The delay is intended to ensure sufficient numbers of Chinook salmon and coho salmon enter the Salmon River Fish Hatchery for spawning and egg-take purposes. Providing for an adequate egg take for hatchery operations in support of the Lake Ontario and tributary fisheries will benefit fishing-dependent businesses in future years as the fish resulting from the hatchery operations are available to be caught by anglers for the next four years.

7. Small business and local government participation: The department's outreach efforts on this rule making included notification to the area businesses that we are considering the rule. The department will issue a press release on the regulation change, and notification of the delayed open season will be posted on the department's website www.dec.ny.gov In addition, department staff will seek to have the rule posted on Brookfield Power's Water line at www.h2oline.com/365123.asp, which is a web site that provides flow levels in the Salmon River and is very popular with anglers.

8. Cure period or other opportunity for ameliorative action: NA

Rural Area Flexibility Analysis

This emergency rule making will delay the open fishing season on a small portion of the Salmon River, 1/4 of a mile in length. Anglers have approximately 15 other miles of river to fish, including the upper fly fishing catch and release fishing area. The additional protection afforded fish destined for the egg take operations at the Salmon River Hatchery will help ensure that subsequent hatchery production resulting from these fish will support the Lake Ontario and Salmon River fisheries into the future. Hatchery operations are beneficial to the rural communities and the businesses in those communities that rely on robust fisheries. Therefore, the Department of Environmental Conservation has determined that this rule will not impose any significant adverse impact on rural areas.

The rule making simply closes an area to fishing for 46 days. Thus, the department has determined that this rule will not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Therefore, the department has concluded that a rural area flexibility analysis is not required.

Job Impact Statement

The department has determined that this emergency rule making will not have a substantial adverse impact on jobs and employment opportunities. The only jobs that could potentially be directly affected by this rule are fishing guides. While certain fishing guides may wish to take clients on this portion of the Salmon River, the effects are limited and temporary. This emergency rule making delays the opening for 46 days after the filing, for only a 1/4-mile portion of the Salmon River. There are approximately 15 additional miles of river not impacted by this rule making that are open to anglers and fishing guides.

Protection of the fish in the staging area prior to their entry into the Salmon River Hatchery will benefit angling businesses and jobs by ensuring that sufficient hatchery production will be available to support the fisheries in future years.

Therefore, the department has determined that a job impact statement is not required.