RULES AND REGULATIONS
Title 58—RECREATION
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 65 ]
Fishing; Special Fishing Regulations
[53 Pa.B. 7595]
[Saturday, December 9, 2023]The Fish and Boat Commission (Commission) amends Chapter 65 (relating to special fishing regulations). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendment implements miscellaneous special regulations in § 65.24 (relating to miscellaneous special regulations) on the 12 stream sections that would manage brown trout with catch and release regulations and maintain Commonwealth inland water regulations for all other species with all tackle types permitted, while continuing to stock these stream sections with rainbow trout at current rates and frequency.
A. Effective Date
This final-form rulemaking will go into effect January 1, 2024.
B. Contact Person
For further information on this final-form rulemaking, contact Renae Kluk Kiehl, Esq., P.O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at www.fishandboat.com.
C. Statutory Authority
The amendment to § 65.24 is published under the statutory authority of section 2307(a) of the code (relating to waters limited to specific purposes).
D. Purpose and Background
The specific purpose and background of the amendment are described in more detail under the summary of changes.
E. Summary of Changes
In the mid-2000's, productive stream sections were identified that supported high densities of wild brown trout and were being stocked by the Commission. Angler counts documented very high angler use of these stream sections in the early part of trout season, particularly on the opening day of the regular season for trout. As part of the Commission's Strategic Plan for Management of Trout Fisheries in Pennsylvania 2010—2014, Commission staff identified the need to resurvey the stream sections to determine if they supported Class A wild trout populations and designate appropriately. Inaccurate designation leads to inadequate water quality protection and inconsistent application of fisheries management strategies.
Between 2011 and 2015, biologists resurveyed 13 stream sections, and all were determined to support robust wild brown trout populations that qualified for Class A wild trout streams designation. In 2014, the Commission updated its Class A wild trout streams policy in § 57.8a (relating to Class A wild trout streams) to allow for rare circumstances in which Commission stocking could be considered and the new policy became effective January 1, 2015. Following that policy change, the ten stream sections were designated by the Commission as Class A wild trout streams in 2015 and stocking of trout continued. Three additional stocked trout water (STW) stream sections were designated Class A wild trout streams by the Commission through January 2017, bringing the total number of Class A wild trout streams stocked by the Commission to 13.
Twelve of the 13 stream sections are managed under Commonwealth inland waters regulations in § 61.1 (relating to Commonwealth inland waters) which allow for the harvest of five trout per day, greater than or equal to 7 inches in length (combined species) from 8 a.m. on the opening day of the regular season for trout through Labor Day, catch and release from the day after Labor Day through the third Sunday in February (extended trout season) the following year and closed to all fishing from the third Monday in February until 8 a.m. on the opening day of the regular season for trout. Yellow Creek, Section 05, is the remaining stream section and is managed with catch and release fly-fishing only regulations in § 65.14 (relating to catch and release fly-fishing only). All 13 of the stream sections are stocked with adult rainbow trout only by the Commission during both preseason and in-season stocking periods, and four of the stream sections are also stocked in-season with fingerling rainbow trout only.
As part of the Commission's Strategic Plan for the Management of Trout Fisheries in Pennsylvania 2020—2024, Commission staff identified the need to collect updated biological and social data on these fisheries to inform future management of these stream sections. Deliverable tasks included: 1) by 2022, resurvey the wild brown trout populations and conduct angler use, harvest, and opinion surveys to inform fisheries management of the 13 Class A stream sections stocked with trout; and 2) between 2022 and 2024, consider options and make recommendations to the Board of Commissioners to adjust current management if the data supports alternate management to optimize these fisheries.
Commission staff resurveyed the wild brown trout populations in all 13 of the stream sections during summer 2021. Wild brown trout biomass ranged from 10 kg/ha at Little Lehigh Creek, Section 07, to 175 kg/ha at Yellow Creek, Section 05. Except for the four stream sections in the Lehigh Valley, all others supported a similar biomass in 2021 compared to the Class A qualifying surveys that were conducted between 2011 to 2015.
In addition to the brown trout population assessments, angler surveys (that is, counts and interviews with effort focused on opening day) were conducted at 11 of the 13 stream sections during 2021. A more in-depth assessment from the opening day of the regular season for trout (April 17, 2021) through Labor Day (September 6, 2021) was conducted on Bald Eagle Creek, Section 06, to evaluate angler use, catch, harvest and opinions. Yellow Creek, Section 05, was not included in the angler survey given that it is managed as a catch-and-release fishery open to year-round angling.
The angler assessments provided valuable insight regarding opinions needed to inform future management of these waters. The only management option in which most anglers (57%) were opposed was a stocking cessation. This result was not unexpected given that most anglers caught stocked rainbow trout, particularly on opening day, and this perceived sentiment was a driving factor in the continuance of stocking following Class A designation in 2015 through 2017.
On opening day of the 2021 trout season, 1,442 anglers were counted on the 12 stream sections during the 8 a.m. angler use assessments. Angler use ranged from 10 anglers per mile (25th percentile) to 91 anglers per mile (95th percentile) with 8 waters at or above the 75th percentile, 3 in the 50th percentile and 1 in the 25th percentile compared to Statewide opening day angler use data at STWs. Additionally, 866 anglers were interviewed over the course of the surveys. About 25% of anglers indicated they harvest trout at least half the time. Approximately 49% of anglers indicated they harvest both wild brown trout and stocked rainbow trout, 4% of anglers usually only harvest wild brown trout and 47% of anglers usually only harvest stocked rainbow trout.
Anglers caught and harvested more stocked rainbow trout than wild brown trout. The catch and harvest of rainbow trout on Bald Eagle Creek, Section 06, was high over the course of the survey with nearly three times more the amount of adult rainbow trout caught than were stocked and an estimated 57% of the rainbow trout stocked into this stream section harvested by anglers. The catch and harvest of wild brown trout on Bald Eagle Creek, Section 06, was also high during the survey. Anglers caught just over one and a half times more wild brown trout greater than or equal to 7 inches than were estimated to be present. Additionally, anglers harvested an estimated 23% of the wild brown trout population greater than or equal to 7 inches, of which over 35% of the trout were large (greater than or equal to 14 inches). Anglers were estimated to harvest 212 wild brown trout per mile, of which 74 per mile were greater than or equal to 14 inches. This represents a relatively high harvest of the wild brown trout population, particularly the large trout greater than or equal to 14 inches and suggests that harvest may be limiting the abundance and the size structure of the wild brown trout population in Bald Eagle Creek, Section 06.
When trout stocking occurs, it attracts substantially more harvest-oriented anglers. In Statewide surveys of this Commonwealth's stocked and wild trout streams in 2004 and 2005, Commission staff documented that stocked trout streams had greater than five times higher harvest rates than streams managed for wild trout without stocking. Given the similarities of Bald Eagle Creek, Section 06, to the 11 other Class A stream sections stocked with trout and managed with Commonwealth inland waters regulations, it is likely that similar harvest rates are occurring, and harvest is also precluding those wild brown trout fisheries from reaching their full potential and negatively impacting population size structure.
Most anglers (66%) interviewed indicated support for an alternate management approach that would require catch and release of brown trout while allowing for the continued harvest of rainbow trout under Commonwealth inland waters regulations. This would eliminate harvest mortality and could provide an opportunity for the wild brown trout population to expand, including large wild brown trout greater than or equal to 14 inches that are most desirable to anglers, while continuing to provide an opportunity for anglers to harvest stocked rainbow trout.
Given the wild brown trout population characteristics and estimated angler use, harvest and opinions determined during the recent assessment of the 12 stream sections managed as both Class A wild trout stream sections and STWs, Commission staff propose implementing a miscellaneous special regulation (See § 65.24) on the 12 stream sections that would manage brown trout with catch-and-release regulations and maintain Commonwealth inland waters regulations for all other species with all tackle types permitted, while continuing to stock these stream sections with rainbow trout at current rates and frequency.
The Commission amends § 65.24 to read as set forth at 53 Pa.B. 5497 (September 2, 2023).
F. Paperwork
This final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions.
H. Public Comments
A notice of proposed rulemaking was published at 53 Pa.B. 5497. The Commission received a total of eight public comments regarding the proposed rulemaking: four comments were in support of the proposal and four comments were opposed to the proposal.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendment adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided and eight public comments were received: four comments were in support of the proposal and four comments were opposed to the proposal.
(3) The adoption of the amendment of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(A) The regulations of the Commission, 58 Pa. Code Chapter 65, are amended by amending § 65.24 to read as set forth at 53 Pa.B. 5497.
(B) The Executive Director will submit this order and 53 Pa.B. 5497 to the Office of Attorney General for approval as to legality and form as required by law.
(C) The Executive Director shall certify this order and 53 Pa.B. 5497 and deposit them with the Legislative Reference Bureau as required by law.
(D) This order shall take effect on January 1, 2024.
TIMOTHY D. SCHAEFFER,
Executive DirectorFiscal Note: Fiscal Note 48A-350 remains valid for the final adoption of the subject regulation.
[Pa.B. Doc. No. 23-1685. Filed for public inspection December 8, 2023, 9:00 a.m.]
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