ENV-46-09-00009-A Proposed Fishery Closures for Hudson River American Shad and Fishery Restrictions for the Delaware River American Shad

3/17/10 N.Y. St. Reg. ENV-46-09-00009-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 11

March 17, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-46-09-00009-A

Filing No. 207

Filing Date. Mar. 02, 2010

Effective Date. Mar. 17, 2010

Proposed Fishery Closures for Hudson River American Shad and Fishery Restrictions for the Delaware River American Shad

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

Action taken:

Amendment of Parts 10, 11, 35, 36 and 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-0305, 11-0315, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 13-0105, 13-0339 and 13-0371

Subject:

Proposed fishery closures for Hudson River American shad and fishery restrictions for the Delaware River American shad.

Purpose:

To protect the Hudson River and Delaware River American shad stocks from further decline.

Text of final rule:

Amendment of Part 10 of Title 6 NYCRR.

Part 10 of 6 NYCRR, entitled "Sportfishing" is amended to read as follows:

(Paragraphs 10.1(b)(1) through 10.1(b)(12) remain unchanged)

Existing paragraph 10.1(b)(13) is amended to read as follows:

(b) “Table A. Sportfishing regulations”

		Species	Open Season	Minimum length	Daily limit
	(13)	American shad - in the Hudson River and tributaries north of the George Washington Bridge	[All year] Possession prohibited	[Any size]	[1]
		American shad - all other inland waters	All year	Any size	[6]3

(Paragraphs 10.1(b)(14) through 10.1(b)(19) remain unchanged)

Amendment of Part 11 of Title 6 NYCRR.

Part 11 of 6 NYCRR, entitled "More than one species" is amended to read as follows:

(Section 11.1 remains unchanged)

Section 11.2 is amended to read as follows:

11.2. Taking, possessing, sale, offering or exposing for sale or trafficking in certain Hudson River and Delaware River fish.

Subdivision 11.2(a) through paragraph 11.2(b)(3) remains unchanged.

Addition of paragraph 11.2(b)(4) reads as follows:

(4) Take or possess American shad in the Hudson River and its tributary waters upstream from the river to the first falls or barrier impassable by fish, from the Federal Dam at Troy south to the Governor Malcolm Wilson Tappan Zee Bridge, and the Marine and Coastal District at any time.

Subdivision 11.2(c) through 11.2(d) remains unchanged.

Addition of subdivision 11.2(e) reads as follows:

(e) Possession and sale of American shad in the Hudson River, and its tributary waters upstream from the river to the first falls or barrier impassable by fish, from the Federal Dam at Troy south to the Governor Malcolm Wilson Tappan Zee Bridge, and the Marine and Coastal District.

(1) Any American shad inadvertently taken in the Hudson River, and its tributary waters upstream from the river to the first falls or barrier impassable by fish, from the Federal Dam at Troy south to the Governor Malcolm Wilson Tappan Zee Bridge, and the Marine and Coastal District must be returned to the water immediately without unnecessary injury.

(2) It is unlawful for any person to sell, import, traffic in or possess American shad in New York except that fish from other than New York waters that are accompanied by a bill of lading or sale denoting the State of origin.

(3) Any person violating any provision of this subdivision may be subject to license revocation as provided in Part 175 of this Title as well as other applicable penalties as set forth in law.

Addition of subdivision 11.2(f) reads as follows:

(f) In the Delaware River, and its tributary waters upstream from Port Jervis, no person may:

Addition of paragraph 11.2(f)(1) reads as follows:

(1) Fish commercially for American shad in the New York waters of the Delaware River and its tributaries at any time. For the purposes of this paragraph, fish commercially means either: the possession, setting, tending, operating or maintaining of nets or other devices for which a license is required pursuant to section 11-1503 of the Environmental Conservation Law; or the sale, offering for sale, exposing for sale or transporting of such fish other than in the boat in which such fish were landed after being taken.

Amendment of Part 35 of Title 6 NYCRR.

Part 35 of 6NYCRR, entitled "Licenses" is amended to read as follows:

Existing subdivision 35.1(a) is amended to read as follows: Gear or operation scoop, dip and scap nets 10 feet square or under through gill nets per lineal foot remains the same.

(a) Schedule of license fees for commercial fishing in inland waters

	Gear or operation	Residents	Nonresidents of the State
	[Gill nets in Hudson and Delaware Rivers from March 15 to June 15, 600 feet or under]	[10.00]	[100.00]

Gill nets in Chaumont Bay and waters of Jefferson County within one-half mile of the shore between Horse Island and Tibbet's Light, 2,500 feet or under to inboard motor boat over 15 tons in Lakes Erie and Ontario remains the same.

Amendment of Part 36 of Title 6 NYCRR.

Part 36 of 6 NYCRR, entitled "Gear and operation of gear" is amended as follows:

Subdivision 36.1(a), paragraphs (1) through (3) remain unchanged.

Paragraph 36.1(a)(4) is rescinded.

[(4) It is unlawful for any person to take American shad for commercial purposes without having in possession either a valid gill net or shad and herring gill net Marine permit. Only one valid licensed gill net per fisher may be used to take American shad.]

Subdivision 36.1(b) through section 36.2 remain unchanged.

Subdivision 36.3(a) is amended to read as follows:

(a) [Shad and] Anadromous alewife and blueback herring may be taken with nets in the Hudson River from March 15th to June 15th. This subdivision is subject to additional emergency restrictions of the department pursuant to section 11-0315 of the Environmental Conservation Law.

Subdivision 36.3(b) through subparagraph 36.3(c)(2)(iii) remain unchanged.

Subparagraph 36.3(c)(2)(iv) is rescinded:

[(iv) Gill nets having a stretched mesh equal to 5 2 inches stretched mesh, inside measure, through the net, may be possessed and used in or on that section of the Hudson River between the Rip VanWinkle Bridge and the George Washington Bridge.]

Subparagraph 36.3(c)(2)(v) is renumbered as subparagraph 36.3(c)(2)(iv).

Subparagraph 36.3(c)(3)(i) remains unchanged.

Subparagraph 36.3(c)(3)(ii) is rescinded.

[(ii) gill nets equal to 5½ inches stretched mesh, inside measure, through the net, may be used to take American shad.]

Paragraph 36.3(c)(4) is amended to read as follows:

(4) Escapement period. During the [shad and] anadromous alewife and blueback herring season, from March 15th to June 15th, both dates inclusive, no nets shall be set, placed or drawn or allowed to remain in, or possessed on the waters of the Hudson River below the dam at Troy between 6 a.m. prevailing time on Friday and 6 p.m. prevailing time on the following Saturday; provided, however, that:

Subparagraphs 36.3(c)(4)(i) and 36.3(c)(4)(ii) remain the same.

Subparagraph 36.3(c)(4)(iii) is rescinded.

[(iii) Shad closure. Gill nets equal to 5½ inches stretched mesh, inside measure, through the net, may not be set in or possessed on the waters of the Hudson River below the Rip VanWinkle Bridge to the George Washington Bridge between 6 a.m. prevailing time on Wednesday and 6 p.m. prevailing time on the following Saturday.]

Paragraphs 36.3(c)(5) through 36.3(c)(7) remain unchanged.

Amendment of Part 40 of Title 6 NYCRR.

Part 40 of 6 NYCRR, entitled "Marine Fish" is amended as follows:

Existing subdivision 40.1(f) is amended to read as follows: Species striped bass through black sea bass remain the same. Species American shad is amended to read as follows:

40.1(f) Table A - Recreational Fishing.

	Species	Open Season	Minimum Length	Possession Limit
	American shad	[All year] Possession prohibited	[No minimum size limit]	[1]

Species hickory shad through prohibited sharks remain the same.

Existing subdivision 40.1(i) is amended to read as follows: Species striped bass through black sea bass remain the same. Species American shad is amended to read as follows:

40.1(i) Table B – Commercial Fishing.

	Species	Open Season	Minimum Length	Possession Limit
	American shad	[All year] Possession prohibited	[No minimum length]	[No more than 5 percent of the total weight of all foodfish landed per trip]

Species oyster toadfish through prohibited sharks remain the same.

Addition of subdivision 40.1(w) reads as follows:

(w) American shad commercial fishing--special regulations.

(1) Any American shad inadvertently taken in New York must be returned to the water immediately without unnecessary injury.

(2) It is unlawful for any person to sell, import, traffic in or possess American shad or American shad products in New York except for fish or products from other than New York waters that are accompanied by a bill of lading or sale denoting the State of origin.

(3) Any person violating any provision of these regulations may be subject to license revocation as provided in Part 175 of this Title as well as other applicable penalties as set forth in law.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 11.2(b)(4), (e) and 36.3(c)(2)(iv).

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

Kathryn Hattala, Environmental Conservation, 21 South Putt Corners Rd., New Paltz, NY 12561, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

No changes were made to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

Regulation change affecting the Hudson River and Marine District.

Six individuals, one non-government environmental organization and the Hudson River Estuary Management Advisory fisheries subcommittee (HREMAFS) sent in written comments supporting the proposed closure. The Fish Subcommittee is comprised of ten individuals from varied backgrounds: scientific and academic communities, as well as recreational and commercial stakeholders. The majority consensus of the Fish subcommittee, with the exception of the commercial fisher, was to support the proposed regulations.

All positive comments recognized the critical status of the Hudson's American shad stock and felt that it was essential that these fish be protected. They agreed that the proposed regulations were the only alternative the Department of Environmental Conservation (DEC or department) could take. The fish subcommittee also pointed out the need for continued implementation of the Hudson Shad Recovery Plan (see: www.dec.ny.gov/animals/6945.html) to address the issues identified that affect shad survival. They also requested development of fishery re-opening criteria and stressed the importance of continued annual monitoring of the stock.

Three individuals sent comments opposed to the proposed regulation. Two individuals sent in short letters attributing the shad decline to power plant impact and/or to striped bass predation. One a commercial fishing stakeholder sent in a detailed letter. His concerns are as follows:

• Comment: Over-fishing was not the cause of the decline;

Response: A coast-wide assessment of American shad stocks was completed in 2007 by the Atlantic States Marine Fisheries Commission (ASMFC). This document concluded that excessive harvest from fishing both in the ocean and in the river was the primary reason for the decline of the Hudson's shad stock. Other factors decline (habitat issues, pollution, power plant impacts, etc) undoubtedly contributed to the poor stock condition, but they were not the primary cause of the decline.

• Comment: The department did not follow State Environmental Quality Review (SEQR) procedures and hold a public hearing.

Response: A negative declaration, under SEQR, was filed with the Notice of Proposed rule- making. The proposed regulations are designed to provide conservation protection and will not cause any significant environmental effects. A public hearing was not held due to the poor attendance (12 individuals attended) at two public information meetings, prior to development of the proposed regulations.

• Comment: The Hudson River Estuary Management Committee (HREMAC) was not consulted prior to the announcement of the proposed closure.

Response: This is correct and was due to a mis-communication within the department. However, an Assistant Commissioner has since attended the HREMAC and apologized for this misstep. Department staff and HREMAC then held a long discussion on stock status of Hudson American shad and the reasons supporting the proposed regulations.

• Comment: The state of Connecticut protects and defends their shad fishermen and fishery.

Response: It is correct that the state of Connecticut has not closed their commercial shad fishery. However, the Connecticut shad stock is in much better shape than that in the Hudson and their commercial fishery has a much smaller effect on the stock relative to losses at fish passage facilities. There are many other differences between the two stocks and the rivers, but a more detailed comparison is not relevant to the proposed regulations.

• Comment: Predation by adult striped bass has caused the decline of adult and young shad. It occurs in the Connecticut River, so it must happen the same way in the Hudson.

Response: Department staff, in the above referenced 2007 ASMFC stock assessment, examined the issue of adult bass eating adult shad in the Hudson River. Examination of gut contents of nearly 2,000 striped bass indicated that only two small shad were consumed. It is not clear what predation rates occur for young shad in the Hudson. The department is currently obtaining samples to examine this. Other diet studies from other coastal states indicate the favored food item for striped bass are Atlantic menhaden or river herring, not American shad.

• Comment: Fishing restrictions implemented in 2008 did not change abundance of young shad so therefore reduced fishing effort and harvest does not affect abundance.

Response: The department implemented restrictions in 2008 because juvenile production, beginning in 2002, had already plummeted into what is known as "recruitment failure" (very few young produced by few adults). We did not close the fishery in 2008, because we hoped that there were enough spawning fish left to increase production of young if harvest was reduced. We also hoped that we could maintain some of the recreational and commercial fishing tradition of the Hudson Valley. Unfortunately, juvenile production dropped even further and abundance indices are now among the lowest observed in 29 years of sampling. Obviously, the adult population has become too small to respond without drastic reduction in mortality. If harvest continues, the fishers will only further erode what is left of the spawning adults.

• Comment: A quota fishery would work since fishermen caught fewer than 3,600 fish per year in recent years.

Response: A mean of over 7,000 American shad per year were reported harvested by Hudson River commercial fishermen in 2007 and 2008 (reported numbers do not account for under-reporting). The stock is entering in its eighth year of recruitment failure and these few fish are the fish that will be returning to spawn over the next few years in the river. They are all that remains to rebuild the stock. If harvest continues, production of young may altogether disappear. The department cannot accept this possibility.

• Comment: As an alternative to maintain a traditional fishery, the state should reopen a commercial striped bass fishery in the Hudson River.

Response: The department will reexamine the feasibility for a Hudson River striped bass fishery, but there are several obstacles that need to be met: 1) Department staff would have to determine current stock status and whether harvest on the spawning stock is acceptable; 2) the New York State Department of Health would have to examine the current contaminant levels and give their approval for sale of striped bass from the Hudson; 3) Since New York's striped bass fishery is run by quota under an ASMFC management plan, DEC would have to negotiate with current fishery stakeholders, and other New York commercial fishers to equitably split the current quota; and 4) New York would have to obtain approval for a spawning ground fishery from ASMFC as required by the Interstate Striped Bass Management Plan. It should be noted that the New York delegation to ASMFC initiated a motion at the Winter 2010 meeting to initiate an addendum to increase the coastwide commercial quota which was passed by the Striped Bass Board; eight in favor, seven opposed.

• Comment: The current commercial fishery is symbolic, representing the heritage of a long standing tradition that will fade from view if it if closed.

Response: The department agrees that there is a long tradition associated with the Hudson shad fishery. The decision to close this long standing fishery was not made easily; however, if there are no fish there will be no fishery at all. Any delay in stock recovery will only lessen the ability for future generations to renew the tradition of a shad fishery on the Hudson.

Regulation change affecting the Delaware River.

No comments were received on the proposed regulations for the Delaware River.