PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 61 ]
Fishing
[39 Pa.B. 3455]
[Saturday, July 11, 2009]The Fish and Boat Commission (Commission) proposes to amend Chapter 61 (relating to seasons, sizes and creel limits). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The proposed rulemaking, if approved on final-form rulemaking, will go into effect on January 1, 2010.
B. Contact Person
For further information on the proposed rulemaking, contact Laurie Shepler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This proposed rulemaking is available on the Commission's web site at www. fish.state.pa.us.
C. Statutory Authority
The proposed amendments to §§ 61.2 and 61.8 (relating to Delaware River and River Estuary; and Lehigh River, Schuylkill River and Tributaries) are published under the statutory authority of section 2102(b) of the code (relating to rules and regulations).
D. Purpose and Background
The proposed rulemaking is designed to improve, enhance and update the Commission's fishing regulations. The specific purpose of the proposed amendments is described in more detail under the summary of proposal.
E. Summary of Proposal
(1) American Shad on the Delaware River. Since the mid-1980s, the daily creel limit for American shad in the Delaware River, the West Branch and the Estuary has been six fish with no minimum length limit, and there has been a year-round season. While in years past, American shad was a popular gamefish and anglers often harvested them for consumption, in more recent years it has principally become a catch-and-release fishery. A large-scale creel survey in 2002 resulted in an estimated angler catch of 35,281 shad, of which 6,627 (19%) were harvested (Versar 2003). The 2002 harvest rate was about a third of the estimated 1986 creel survey harvest rate (49%) but was close to the estimated harvest rate for the 1995 (20%) survey. Individual angler trip data voluntarily submitted to the Delaware River and Estuary Angler Logbook Program from 2002 to 2006 indicated that anglers harvested a total of 139 shad of the 1,748 caught (8%) from 496 trips. Three or more shad were harvested on only four trips.
In 2007, the Atlantic States Marine Fisheries Commission's (ASMFC's) Shad and River Herring Technical Committee and American Shad Stock Assessment Subcommittee developed a coast wide stock assessment that indicated that adult American shad stocks in the Delaware River have been declining since 1994. Nevertheless, the annual production of juvenile shad has remained stable. In some other coastal rivers, adult shad stocks have declined as well. Despite the continued depressed abundance and documented low harvest rates of adult American shad in the Delaware River and River Estuary, the creel limit of American shad in this Commonwealth has remained at six fish per day.
The Commission therefore proposes a reduction of the daily creel limit of American shad to three fish in cooperation with the other boundary states (New Jersey, New York and Delaware). Resource managers from all four states participating in the Delaware River Fish and Wildlife Cooperative Technical Committee (DRFWCTC) have verbally agreed that this reduction in the daily creel limit will not negatively impact angler use, and it is a proactive protective measure given the declining status of shad stocks in the Delaware River and other coastal river systems.
At a recent meeting between the Commission and the New Jersey Department of Environmental Protection, Division of Fish and Wildlife (NJDEP), New Jersey staff indicated that their organization is actively pursuing a reduced daily creel limit from the current six fish to three fish in the Delaware River. Their Freshwater Fishery Council has approved the proposed reduction and will solicit public comments this summer. New Jersey staff expect to have the reduced creel limit in place by January 1, 2010; however, due to the fact that the freshwater and marine divisions of the agency have jurisdiction over different parts of the river, the proposed regulation will only pertain to the Delaware River mainstem waters from the New Jersey/New York State border, downstream to the Commodore Barry Bridge. In the remaining 2.9 river miles, from of the Commodore Barry Bridge to the Delaware State line, the creel limit will remain at six in New Jersey until at least 2011, when it is anticipated that New Jersey's Marine Fishery Council will reduce the creel limit in that section to three.
New York is moving forward with a proposed amendment to reduce the American shad creel limit to three per day in the upper Delaware River. They indicated that a 2010 date for implementation is extremely optimistic and that 2011 is more realistic.
Delaware's only recreational shad angling occurs on the Brandywine Creek, and it is extremely limited. Delaware is moving to reduce the creel limit of herring (they do not make a distinction between American shad and river herring) from 10 combined/day to six combined/day. They anticipate doing this in conjunction with a change in the commercial regulations, but they do not anticipate this change occurring for the 2010 season.
In the interest of coordination with the regulations of New Jersey and New York, the Commission proposes that effective January 1, 2010, the reduced creel limit be applied to the West Branch and the entire Delaware River mainstem from the confluence of the East and West Branches downstream to the Commodore Barry Bridge as set forth in Annex A.
The Commission further proposes that for the remaining 2.9 miles downstream of the Commodore Barry Bridge, the current daily limit of six remain in effect until such time as New Jersey's Marine Council effectuates a change. At that time, the Commission will seek public comments on an amendment that reduces the creel limit of the lower section to three, with an effective date that coincides with the Marine Council's regulation change.
(2) River Herring on the Delaware, Lehigh and Schuylkill Rivers. Since the mid-1980's, the daily creel limit for river herring, a term applied collectively to blueback herring and alewife, in the Delaware River, West Branch and Estuary, has been a total of 35 herring, with no minimum length limit, and the season is open year-round. River herring are popular with striped bass anglers who use them either as live or cut bait. Principally, this fishery exists during the spring when river herring and striped bass are migrating into the Delaware River and Estuarine waters. Traditionally, anglers jigged for river herring for use as bait at the onset of a trip and during the trip. However, it has been alleged that an illegal transport fishery has developed in which entrepreneurs catch river herring from the Delaware River and transport them to the New Jersey coast for sale as bait to coastal anglers.
In 2002, catch and harvest of river herring in the Delaware River and Estuary were estimated in a large-scale creel survey (Versar 2003). This survey resulted in an estimate of a total catch of 7,553 river herring of which 4,916 (65%) were harvested. Most of the fish harvested were taken from tidal waters (1,465 fish, Delaware Memorial Bridge to Trenton, NJ) and the lower reach of the nontidal Delaware River (5,105 fish, Trenton, NJ upstream to Delaware Water Gap). Field observations by the creel clerks during the course of the 2002 survey indicated that only a small number of anglers target river herring. Many of these anglers were noted to have elaborate live-wells in their vehicles for keeping river herring alive, which accounted for the relatively high estimated harvest rates.
The ASMFC's Draft Amendment 2 to the Interstate Fishery Management Plan for Shad and River Herring states that river herring abundance has declined precipitously since the mid-1990's and remains depressed along the Atlantic Coast. The Commission therefore is proposing a reduction in the daily creel limit to ten along with the other Delaware River and Estuary boundary states of New York and New Jersey. Delaware's herring creel limit is already ten per day. The proposed action will unify regulations throughout the Delaware River. Resource managers participating in the DRFWCTC from all four states have verbally agreed that a reduction of the daily creel limit would not negatively impact angler use. This creel limit reduction is designed to allow for the continued use of river herring as a bait source by the individual angler, while reducing the economic incentive for the illegal sale of the fish for bait. New Jersey researchers conducted an informal survey of the most likely impacted commercial guides fishing the Delaware River. The results of the survey indicated strong support for the proposed reduction in the daily creel limit.
At a recent meeting between the Commission and the NJDEP, New Jersey staff indicated that their organization is actively pursuing the reduced river herring creel limit. Their Freshwater Fishery Council has already approved the proposed reduction, and public comments will be solicited this summer. New Jersey staff expect to have the reduced river herring creel limit in place by January 1, 2010; however, due to the fact that the freshwater and marine divisions of the agency have jurisdiction over different parts of the river, the proposed regulation will only pertain to the Delaware River mainstem waters from the New Jersey/New York State border, downstream to the Commodore Barry Bridge. In the remaining 2.9 river miles from of the Commodore Barry Bridge to the Delaware State line, the creel limit will remain at 35 in New Jersey until at least 2011, when it is anticipated that New Jersey's Marine Fishery Council will reduce the creel limit in that section to 10.
New York is not proposing any changes to its river herring creel limits due to the fact that they do not anticipate river herring ascending that far up the Delaware River.
Delaware's only recreational shad angling occurs on the Brandywine Creek, and it is extremely limited. Delaware is moving to reduce its creel limit of herring (they do not make a distinction between American shad and river herring) from ten combined/day to six combined/day. They anticipate doing this in conjunction with a change in the commercial regulations, but they do not anticipate this change occurring for the 2010 season.
In the interest of coordination with the regulations of New Jersey, the Commission proposes that effective January 1, 2010, the reduced creel limit be applied to the West Branch and the entire Delaware River mainstem from the confluence of the East and West Branches downstream to the Commodore Barry Bridge as set forth in Annex A. Given the anadromous fish restoration efforts on the two major tributaries to the Delaware, the Commission also proposes imposing a ten fish per day creel limit on the Lehigh and Schuylkill Rivers as set forth in Annex A.
The Commission further proposes that for the remaining 2.9 miles downstream of the Commodore Barry Bridge, the current daily limit of 35 river herring remain in effect until such time as New Jersey's Marine Council effectuates a change. At that time, the Commission will seek public comments on an amendment that reduces the creel limit of the lower section to 10, with an effective date that coincides with the Marine Council's regulation change.
After the Commission approved publication of this notice of proposed rulemaking containing proposed amendments to its regulations pertaining to river herring, ASFMC approved Amendment 2 to the Interstate Fishery Management Plan for Shad and River Herring. The amendment prohibits commercial and recreational fisheries of river herring beginning January 1, 2012, unless a state or jurisdiction develops and submits for approval a sustainable management plan by January 1, 2010. The amendment defines a sustainable fishery as ''a commercial and/or recreational fishery that will not diminish the potential future stock reproduction and recruitment.'' Submitted plans must clearly demonstrate that the state or jurisdiction's river herring fisheries meet this new definition of sustainability through the development of sustainability targets that must be achieved and maintained.
ASMFC's approval of Amendment 2 was taken in response to widespread concern regarding the decline of river herring stocks. While many populations of blueback herring and alewife, collectively known as river herring, are in decline or remain depressed at stable levels, lack of fishery-dependent and independent data makes it difficult to ascertain the status of river herring stocks coastwide. Between 1985 and 2007, commercial landings of river herring decreased by 97% from 13.6 million pounds to 317,000 pounds.
The Commission's approach to its river herring regulations could be influenced by the recent ASMFC action. Currently, the Commission is working with other state agencies with jurisdiction that includes parts of the Delaware River or Delaware Estuary to develop a coordinated interstate approach for future regulations. This coordinated approach could result in the Commission's final adoption of amendments that are the same as or similar to those proposed in this notice of proposed rulemaking, or it could mean more conservative regulations, up to a total moratorium on the river herring fishery.
F. Paperwork
The proposed rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed rulemaking to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically by completing the form at www.fishandboat.com/regcomments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt. Electronic comments submitted in any other manner will not be accepted.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-212. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 61. SEASONS, SIZES AND CREEL LIMITS § 61.2. Delaware River, West Branch Delaware River and River Estuary.
* * * * * (d) The following seasons, sizes and creel limits apply to the Delaware River, West Branch Delaware River and [to] Delaware River tributaries, from the mouths of the tributaries upstream to the limit of the tidal influence and the Lehigh River from its mouth upstream to the first dam in Easton, Pennsylvania:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT * * * * *
AMERICAN SHAD Open year-round No minimum From Pennsylvania line upstream to the Commodore Barry Bridge: 6
From the Commodore Barry Bridge upstream: 3* * * * *
RIVER HERRING
(alewife and blueback herring)Open year-round No minimum From Pennsylvania line upstream to the Commodore Barry Bridge: 35
From the Commodore Barry Bridge upstream: 10* * * * * § 61.8. Lehigh River, Schuylkill River and tributaries.
* * * * * (d) The following seasons, sizes and creel limits apply to the Lehigh River upstream of the first dam in Easton, Pennsylvania and its tributaries and the Schuylkill River upstream of the I-95 Bridge and its tributaries:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT AMERICAN SHAD Open year-round No [Minimum] 1 RIVER HERRING
(alewife and blueback herring)Open year-round No minimum 10 * * * * *
[Pa.B. Doc. No. 09-1220. Filed for public inspection July 10, 2009, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
