ENV-44-07-00004-E Special Fishing Regulations for the Salmon River

10/31/07 N.Y. St. Reg. ENV-44-07-00004-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 44

October 31, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-44-07-00004-E

Filing No. 1075

Filing Date. Oct. 12, 2007

Effective Date. Oct. 12, 2007

Special Fishing Regulations for the Salmon River

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 immediate adoption of this rule is necessary for the preservation of the general welfare.

Subdivision 10.2(g) of NYCRR designates catch and release, fly-fishing only areas on the Salmon River. The lower fly fishing catch and release area, which is ¼ mile 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 an historic low level (14 feet below dam crest on September 10, 2007) 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 reduce the base flow in the Salmon River to 100 cfs, which is less than 1/3 of normal for this time of year.

The lower fly fishing, catch and release area on the Salmon River is a staging area for various species of fish, including chinook and coho salmon as they prepare to enter the hatchery. A high number of 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.

The lower fly fishing, catch and release area on the Salmon River was scheduled to open to fishing on September 15, 2007. The Department delayed the opening to October 15th by emergency rulemaking, anticipating that conditions would eventually improve. Unfortunately, conditions have not improved due to continued warm weather and a lack of precipitation.

In response to this situation, the Department has determined that it is necessary to further delay the opening of the lower fly fishing area until November 15, 2007. The egg taking activities at the Salmon River Hatchery were scheduled to begin on October 9, 2007, but continued warm weather and a lack of precipitation have delayed that effort. Delaying the opening to November 15, 2007 should allow adequate numbers of fish to enter the hatchery. In addition, water temperatures should be lower by November 14 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 on November 15, the Department reserves the right to extend the closure for a longer period of time should conditions not improve sufficiently.

Subject:

Special fishing regulations for the Salmon River.

Purpose:

To prevent salmon mortality due to drought conditions.

Text of emergency rule:

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] November 15 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 hook with more than one hook point or with a gap of greater than one-half inch;

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

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

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

This notice is intended

to serve only as a notice of emergency adoption. This agency does not intend to adopt the provisions of this emergency rule as a permanent rule. The rule will expire January 9, 2008.

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

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

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 Environmental Conservation Law), 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 NYCRR designates catch and release, fly-fishing only areas on the Salmon River. The lower fly fishing catch and release area, which is ¼ mile 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 an historic low level (14 feet below dam crest on 9/10/07) 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 reduce the base flow in the Salmon River to 100 cfs, which is less than ⅓ of normal for this time of year.

The lower fly fishing, catch and release area on the Salmon River was scheduled to open to fishing on September 15, 2007. 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. A high number of 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 originally delayed the opening of the lower fly fishing area until October 15, 2007. The Department is further delaying the opening until November 15th because conditions have not improved. The egg take at the Salmon River Hatchery was scheduled to begin on October 9, 2007 but continued high temperatures and low flows delayed the start of the egg take. Further delaying the opening to November 15, 2007 should allow adequate numbers of fish to enter the hatchery. In addition, water temperatures should be lower by November 14 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 on November 15, 2007 the Department reserves the right to extend the closure for a longer period of time should conditions not improve sufficiently.

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).

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, and immediate compliance with the closed period will be required.

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 original emergency regulation closed the area to fishermen from September 15th (the scheduled opening day) through and including October 14th. This rule would further extend the closure through and including November 14th. Absent further action by the Department, the area would open on November 15th.

3. Professional services:

NA.

4. Compliance costs:

NA.

5. Economic and technological feasibility:

Recent creel surveys on the Salmon River estimate from 76,000 to 91,000 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) have accounted for about 10 percent of the overall fishing effort.

6. Minimizing adverse impact:

The lower fly fishing catch and release fishing area is ¼ 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 rulemaking 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” www.h2oline.com/365123.asp, which is a web site that provides flow levels in the Salmon River and is very popular with anglers.

Rural Area Flexibility Analysis

This emergency rulemaking will delay the open fishing season on a small portion of the Salmon River, ¼ 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 rulemaking simply closes an area to fishing for approximately one more month. Thus, the Department has determined that this rule will not impose any reporting, recordkeeping, 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 rulemaking 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. The original emergency rulemaking delayed the opening of the lower fly fishing area by one month. The Department is further delaying the opening until November 15th because conditions have not improved. Even with this one month extension only a ¼-mile portion of the Salmon River will be closed for a total of two months. There are approximately 15 additional miles of river not impacted by this rulemaking 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.