ENV-07-12-00005-P Sportfish Activities and Associated Activities
2/15/12 N.Y. St. Reg. ENV-07-12-00005-P
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 7
February 15, 2012
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-07-12-00005-P
Sportfish Activities and Associated Activities
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 10.2, 10.3, 10.5, 10.6, 10.8 and 35.2 of Title 6 NYCRR. This rule is proposed pursuant to SAPA § 207(3), 5-Year Review of Existing Rules.
To revise sportfishing regulations and associated activities including snakeheads caught by angling and commercial bait collection.
Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):
The purpose of this rule making is to amend the Department of Environmental Conservation's (department) general regulations governing sportfishing (6 NYCRR Part 10) and associated (6 NYCRR Part 35) regulations governing Commercial Inland Fisheries. Following biennial review of the department's fishing regulations, department staff have determined that the proposed amendments are necessary to maintain or improve the quality of the State's fisheries resources. Changes to sportfishing regulations are intended to promote optimum opportunity for public use consistent with resource conservation.
The following is a summary of the amendments that the department is proposing:
Establish a special walleye regulation of 18 inches minimum size and daily limit of 3/day in Lake Pleasant and Sacandaga Lake, Hamilton County, to aid restoration of the walleye population.
Prohibit fishing in the following stream sections from March 16 until the first Saturday in May (opening day for walleye) to protect spawning walleye: Lake Pleasant outlet to the mouth of the Kunjamuk River, Hamilton County; Little Sandy Creek, Oswego County, from the intersection of the channelized area located adjacent to Koster Drive downstream of the State Rt. 3 bridge to the lower boundary of the public fishing rights section located upstream of the State Rt. 3 bridge; and Catskill Creek, Greene County, from the Route 9W bridge upstream to the dam in Leeds.
Remove special walleye regulations (18 inch minimum size and daily limit of 3/day) and apply the statewide regulation (15 inch minimum size and 5/day) for Lime Lake, Cattaraugus County; and Bear and Findley lakes, Chautauqua County because these populations no longer require the added protection.
Change the walleye daily limit for Lake Erie and the Upper Niagara River to 6 per day to harmonize limits with bordering jurisdictions.
Eliminate the special black bass closed season for Oneida Lake and implement statewide regulations to create additional fishing opportunity and expand statewide consistency.
Apply statewide black bass regulations for Allen Lake, Allegany County, and Cassadaga lakes, Chautauqua County as recent surveys have shown stable bass populations in these waters.
Extend the catch and release only regulation for brook trout into tidal streams in Suffolk County to provide additional protection to salter brook trout populations.
Eliminate Suffolk County tidal trout regulations and apply freshwater stream trout regulations to these sections because the anticipated sea run brown trout fishery did not develop.
Change minimum length for salmonids in the Upper Niagara River to any size because it is not necessary that this section be in sync with the current 12 inch minimum length requirement for Lake Erie, plus this change provides for the allowable harvest of salmonids (any size) below the first impassable barrier of the River. By this elimination, the regulations are simplified and the harvest of newly stocked trout that are part of an urban put and take fishery (located below the first impassable barrier) is allowed for.
Change the trout regulations for the Titicus Outlet, Westchester County, and Esopus Creek, Shandaken tunnel outlet to Ashokan Reservoir, Ulster County, to a daily limit of 5 fish with no more than 2 trout longer than 12 inches to increase catch rates of trout.
Delete the 12 inch size and daily limit of 3 fish/day for kokanee in Glass Lake, Rensselaer County because DEC no longer stocks this species.
Open Lake Kushaqua and Rollins Pond, Franklin County, to ice fishing for lake trout as these stocked populations are considered stable enough to support this activity.
Restore all year trout fishing in Saranac River from the Lake Flower Dam in the Village of Saranac Lake to the Pine Street bridge, as this regulation was mistakenly omitted in 2010.
Open Blue Mountain Lake, Eagle Lake, Forked Lake, Gilman Lake, South Pond and Utowana Lake, Hamilton County, to ice fishing for landlocked salmon and reduce the daily limit for lake trout in these waters from 3/day to 2/day. Combined with an existing regulation, this change will create a suite of nine lakes in Hamilton County that will have the same ice fishing regulations for lake trout and landlocked salmon.
Delete the catch and release trout regulation for Jordan River from Carry Falls Reservoir upstream to Franklin County line, St. Lawrence County, because this regulation is considered inappropriate for this remote stream section.
Implement a 12 inch minimum size for brown trout in Otisco Lake to provide additional opportunity for angler harvest.
Reduce the creel limit of rainbow trout from 5 to 1 in the western Finger Lakes and from 3 to 1 in the tributaries to provide further protection for this species. Western Finger Lakes include Seneca, Keuka, Canandaigua, Canadice, and Hemlock Lakes.
Remove the restriction of no more than 3 lake trout per day as part of the 5 trout creel limit in the western Finger Lakes to reduce competition with other trout species and impacts on the forage base.
Eliminate the current trout catch and release section for Ischua Creek, Cattaraugus County, to enhance angling opportunities by allowing beginner and young anglers to use the section of stream located in the Village of Franklinville, including to keep caught trout.
Change the minimum size limit for rainbow trout in Skaneateles and Owasco lakes from 9 inches to 15 inches, creating consistency with the other Finger Lakes.
Include the tributaries to the current fishing closure of Beaverdam Brook, from their mouths to the upstream boundary of the Salmon River Hatchery property, or within 100 yards of any department fish collection device. This would make oversight and enforcement of this area more effective.
Institute a catch and release only regulation for chain pickerel in Deep Pond, Suffolk County to allow the pickerel population to recover from over exploitation and increase needed predator control over panfish.
Implement a 40 inch size limit for muskellunge and tiger muskellunge in the Chenango, Tioughnioga, Tioga, and Susquehanna rivers, and a 36 inch minimum size limit at Otisco Lake, to increase the trophy potential of these species in these waters.
Delete special ice fishing regulation for Square Pond in Franklin County because this water will no longer be managed for trout.
Eliminate the existing ban on the use of tip-ups in Crumhorn Lake, Otsego County because this is an unnecessary and unwarranted restriction.
Allow ice fishing on stocked trout lakes in Allegany, Niagara, Wyoming, Chautauqua, Erie, and Cattaraugus counties unless otherwise stated. These lakes are managed for put and take trout fishing and they contain warm water fish species that should be available to anglers during the winter months, through the ice.
Provide for ice fishing in select group of waters in the counties of Herkimer (Forestport Reservoir, Hinkley Reservoir, Kayuta Lake, Moshier Reservoir and North Lake); Jefferson (Millsite Lake); Lewis (Beaver Lake, Francis Lake, Soft Maple Reservoir, and Whetstone Marsh); Oneida (Delta Reservoir) and St. Lawrence (Sterling Pond).
Provide for ice fishing at a privately managed water in Hamilton County (Salmon Pond).
Include Cayuta Lake as a designated water from which baitfish may be collected.
More clearly specify that attempting to take fish by snagging is prohibited.
Permit the use of multiple hooks with multiple points on Lake Erie tributaries to provide additional angling opportunities.
For the Salmon River, Oswego County, allow a bead chain to be attached to floating lures. The distance between a floating lure and hook point may not exceed 3 ½ inches when a bead chain configuration is used. This was determined to be an effective angling method and was not considered an attractive snagging device.
For the Salmon River, Oswego County, implement a no weight restriction (i.e., only floating line and unweighted leaders and flies allowed) from May 1 - 15 for the Lower Fly Area and from May 1 - August 31 for the Upper Fly Area to provide further protection to vulnerable fish.
Remove the allowance for taking 5 additional brook trout at Spafford Creek as this was intended to be included as part of the statewide deletion of this Regulation in 2010.
Delete special regulation for Deer Pond in Franklin County as a special regulation no longer exists since the deletions of the 5+5 brook trout regulation in 2010.
Delete the special trout regulation for Palmer Lake in Saratoga County to match the statewide regulation (minor adjustment as extends the season 15 days).
Prohibit the release of any snakehead caught by angling in New York City waters (i.e. clarify that they should not be released as part of the catch and release requirements).
In addition (to the above) clarify that snakeheads should not be released if caught while angling, statewide.
Eliminate a redundant section of the regulations pertaining to the use of gaff hooks on Finger Lake tributaries through the ice as such is largely prohibited in another section of the regulations.
Provide clarity and language clean-up in sections of Part 10 as warranted. These instances do not result in any substantive regulation changes (e.g. removing an incorrect time period that is inconsistent with the time period governing the Lake Champlain Tributary section of the regulations; clarifying the name of the lake being referenced in Crotona Park (as being Indian Lake) in the special regulation sections for Bronx County; provide consistency when describing first impassable barriers in tributaries; and correct a description for a section of Fall Creek in Tompkins County.
Text of proposed 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, (518) 402-8928, email: sxkeeler@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
A Programmatic Impact Statement pertaining to these actions is on file with the Department of Environmental Conservation.
Reasoned Justification for Modification of the Rule
General revisions to the State's regulations governing sportfishing (Part 10) and related activities (i.e. including Part 35 in this instance) are continuously needed to meet the management needs for specific waters as well as part of an effort to accommodate angler and other stakeholder desires. To meet this need the Division of Fish, Wildlife and Marine Resources conducts a biennial revision of regulations governing sportfishing and associated activities. Conducting a review of and proposing amendments to 6 NYCRR Part 10, every two years, is responsive and adequate towards meeting the 5 yr of Existing Rules review requirement.
Regulatory Impact Statement
1. Statutory Authority
Section 3-0301 of the Environmental Conservation Law (ECL) establishes the general functions, powers and duties of the Department of Environmental Conservation (department) and the Commissioner, including general authority to adopt regulations. Sections 11-0303 and 11-0305 of the ECL authorize the 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. Section 11-0317 of the ECL empowers the department to adopt regulations, after consultation with the appropriate agencies of the neighboring states and the Province of Ontario, establishing open seasons, minimum size limits, manner of taking, and creel and seasonal limits for the taking of fish in the waters of Lake Erie, Lake Ontario, the Niagara River and the St. Lawrence River. 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. Section 11-1316 of the ECL empowers the department to designate by regulation waters in which the use of bait fish is prohibited. Section 11-1319 of the ECL governs possession of fish taken in waters of the State.
2. Legislative Objectives
Open seasons, size restrictions, daily creel limits, and restrictions regarding the manner of taking fish are tools used by the department in achieving the intent of the legislation referenced above. The purpose of setting seasons is to prevent over-exploitation of fish populations during vulnerable periods, such as spawning, thereby ensuring a healthy population. Size limits are necessary to maintain quality fisheries and to ensure that adequate numbers survive to spawning age. Creel limits are used to distribute the harvest of fish among many anglers and optimize resource benefits. Regulations governing the manner of taking fish upgrade 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 providing a large population of desirable-sized fish, creating an outstanding opportunity for anglers willing to forego harvesting fish. Prohibiting the release of snakehead fish caught by angling is protective of native fish communities by preventing the proliferation of this undesirable fish species. Allowing for the commercial collection of baitfish from specific waters whereby there are no adverse impacts to the fish community provides for enhancing angling opportunity by making baitfish available for angling.
3. Needs and Benefits
Most significant fishery resources in New York State are monitored through annual or periodic survey and inventory by Bureau of Fisheries staff. These fisheries surveys identify particular situations where changes in fishing regulations may be required to maintain the quality of a particular fishery or where significant opportunity for improvement or enhancement of the fishery exists. Additional regulation changes are prompted by the recommendation of user groups or the need to correct or clarify existing regulations. Concepts for regulation amendments that address identified needs are developed by Bureau of Fisheries staff and reviewed with sportsmen's groups at the local, regional, or state-wide level, depending upon the significance of the proposal.
In order to facilitate compliance by the angling public, significant revisions of the department's fishing regulations are currently conducted on a biennial schedule. The proposed amendments are necessary to maintain or improve the quality of the State's fisheries resources. Changes to sportfishing regulations are intended to promote optimum opportunity for public use consistent with resource conservation.
4. Costs
Enactment of the rules and regulations 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 proposed changes in regulations.
7. Duplication
There are no other State or federal regulations which govern the taking of freshwater sportfish.
8. Alternatives
The primary alternative to the proposed regulations would be to retain current fishing regulations. In the absence of the proposed changes, opportunities to enhance the quality or public use and enjoyment of fisheries may be deferred or lost. Failure to adopt regulations in a timely manner could result in undesirable and irreversible changes in aquatic community structure. Some fish populations may decline if the proposed regulations are not enacted in a timely manner. Strengthening current measures for countering the proliferation of snakeheads and their impact on freshwater fish populations would not be implemented. In addition, additional opportunity for the commercial collection of baitfish would not be provided for.
9. Federal Standards
There are no minimum federal standards that apply to the regulation of sportfishing.
10. Compliance Schedule
These regulations, if adopted, will be in effect for the 2012-2013 license year, which begins on October 1, 2012. It is anticipated that regulated persons will be able to immediately comply with these regulations once they take effect.
Regulatory Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing sportfishing. These amendments were developed as a result of the department's biennial review of existing sportfishing regulations. Changes to these regulations are intended to promote optimum opportunity for public use consistent with resource conservation.
The department has determined that the proposed regulations will not impose an adverse impact or any new or additional reporting, recordkeeping or other compliance requirements on small businesses or local governments. All reporting or recordkeeping requirements associated with sportfishing are administered by the department. Since small businesses and local governments have no management or compliance role in the regulation of sport fisheries, there is no impact upon these entities. Small businesses may, and town or village clerks do issue fishing and sportsman licenses. However, the department's rule making proposal does not change this process.
Fishing guides, and tackle/baitfish shops (to some extent), are the only business entities directly affected and impacted by changes to regulations pertaining to sport fishing. However, the actions proposed in this rule making (e.g. adjustments to season dates, bag limits, minimum size limits, gear restrictions etc.) are not measures that result in an overall loss of angling opportunities or diminish opportunities for taking fish. Therefore, while guide businesses would need to adjust techniques and schedules to comply with the proposed regulations, these businesses should not lose clientele as a result or otherwise be adversely impacted by the changes. In fact, positive impacts are anticipated for these businesses because the proposed regulations would enhance the likelihood that angling opportunities will remain high and sustainable for future anglers and fishing-related businesses.
Based on the above, the department has determined that a regulatory flexibility analysis is not required.
Finally, Chapter 524 of the New York Laws of 2011 is not applicable as this proposed rule making does not establish or modify a violation or a penalty associated with a violation.
Rural Area Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing sportfishing. These amendments were developed as a result of the department's biennial review of existing sportfishing regulations. Changes to these regulations are intended to promote optimum opportunity for public use consistent with resource conservation.
The department has determined that the proposed rules will not impose an adverse impact or any new or additional reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. All reporting or recordkeeping requirements associated with sportfishing are administered by the department. The proposed regulations are not anticipated to negatively change the number of participants or the frequency of participation in regulated activities.
Fishing guides, and baitfish/tackle shop (to some extent), are the only entities directly affected and impacted by changes to regulations pertaining to sport fishing. However, the actions proposed in this rule making (e.g. adjustments to season dates, bag limits, minimum size limits, gear restrictions, etc.) are not measures that result in an overall loss of angling opportunities or diminish opportunities for taking fish. Therefore, while guide businesses would need to adjust techniques and schedules to comply with the proposed regulations, these businesses should not lose clientele as a result or otherwise be adversely impacted by the changes. In fact, positive impacts are anticipated for these businesses because the proposed regulations would enhance the likelihood that angling opportunities will remain high and sustainable for future anglers and fishing-related businesses.
Small businesses may, and town or village clerks do issue fishing and sportsman licenses. However, the department's rule making proposal does not change this process.
Since the department's proposed rule making will not impose an adverse impact on public or private entities in rural areas and will have no effect on current reporting, recordkeeping, or other compliance requirements, the department has concluded that a rural area flexibility analysis is not required for this regulatory proposal.
Job Impact Statement
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing sportfishing. These amendments were developed as a result of the department's biennial review of existing sportfishing regulations. Changes to these regulations are intended to promote optimum opportunity for public use consistent with resource conservation.
Fishing guides, and baitfish/tackle shops (to some extent), are the only business entities directly affected and impacted by changes to regulations pertaining to sport fishing. However, the actions proposed in this rule making (e.g. adjustments to season dates, bag limits, minimum size limits, gear restrictions, etc.) are not measures that result in an overall loss of angling opportunities or diminish opportunities for taking fish. Therefore, while guide businesses would need to adjust techniques and schedules to comply with the proposed regulations, these businesses should not lose clientele as a result or otherwise be adversely impacted by the changes, and no fishing guide jobs should be lost. In fact, positive impacts are anticipated for these businesses because the proposed regulations would enhance the likelihood that angling opportunities will remain high and sustainable for future anglers and fishing-related businesses.
Based on the above, the department has concluded that the proposed regulatory changes will not have an adverse impact on jobs or employment opportunities in New York, and that a job impact statement is not required.
