BEFORE THE FISH AND WILDLIFE COMMISSION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 12.5.507 and 12.5.508 pertaining to angling restriction and fishing closure criteria

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1.  On July 8, 2022, the Fish and Wildlife Commission (commission) published MAR Notice No. 12-561 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1131 of the 2022 Montana Administrative Register, Issue Number 13.

 

2. The commission has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

12.5.507 ANGLING RESTRICTION AND FISHING CLOSURE CRITERIA

(1) The department shall use the following criteria to determine whether to implement angling restrictions in streams:

(a)  angling pressure as determined by the department has the potential to contribute to excessive fish mortality; and

(b)  one or more of the following environmental conditions has been determined by the department to exist:

(i)  in nonnative salmonid streams designated by the department in the Statewide Fisheries Management Plan, daily maximum water temperatures reach equal to or exceeding 73 degrees Fahrenheit at any time during the day for three consecutive days;

(ii)  in cutthroat trout streams designated by the department in the Statewide Fisheries Management Plan, daily maximum water temperature equal to or exceeding 66 degrees Fahrenheit at any time during the day for three consecutive days;

(iii)  in bull trout streams designated by the department in the Statewide Fisheries Management Plan, a daily maximum water temperature equal to or exceeding 60 degrees Fahrenheit at any time during the day for three consecutive days;

(iv) stream flows fall to or below the 5th percentile of daily mean values for this day flow level based upon hydrologic records for that water body; or

(v) water conditions meet the criteria for angling restrictions as stated in a drought management plan; or

(c) other biological or environmental conditions such as, but not limited to, water body pollution, disease, or concentration of angling pressure due to other restrictions or closures that the department determines have the potential to contribute to excessive fish mortality.

(2)  A fishing closure may be implemented when:

(a)  conditions of (1) develop or degrade;

(b)  dissolved oxygen is equal to or less than 4 ppm when measured in the early morning before sunrise; or

(c)  water conditions meet the criteria for fishing closures as stated in a drought management plan.

(3) An angling restriction or fishing closure may be delayed or may not be implemented by the department if closure criteria are forecast to be met for a short duration.

 

AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

 

12.5.508 REOPENING WATERS (1)  Except on waters with a drought management plan, an angling restriction or fishing closure will remain in effect until reopening criteria described in (2), (3), or (4) have been met, or until August 31. 

(2) The department may reopen streams managed for nonnative salmonids when the department determines in its discretion that daily maximum water temperature does not exceed 70 degrees Fahrenheit for three consecutive days.

(3) The department may reopen streams managed for cutthroat trout when the department determines that daily maximum water temperature does not exceed 66 degrees Fahrenheit for three consecutive days.

(4)  Streams designated by the department to have bull trout shall remain closed until the following conditions occur:

(a)  daily maximum water temperature equals or does not exceed 60 degrees Fahrenheit for three consecutive days; and

(b)  when flow regimes provide adequate security habitat.

(5) Reopening waters may be delayed by the department if:

(a)  reopening criteria is forecast to be met for a short duration;

(b) conditions on priority waters defined by the department in the Statewide Fisheries Management Plan do not provide adequate security habitat; or

(c) angling pressure due to restrictions and closures on other waterbodies has the potential to contribute to excessive fish mortality.

 

AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

 

3. The commission has thoroughly considered the comments and testimony received. A summary of the comments received and the commission's responses are as follows:

 

COMMENT #1: All comments received were in support of the intent of the rules. The commission did receive several comments with suggested changes, but all were in support of the objective and purpose.

 

RESPONSE #1:  The commission appreciates the participation and support in this rulemaking process.

 

COMMENT #2: The commission received several comments in support of amending the rule to include temperature criteria for cutthroat trout streams but stated that 66 degrees is either too high or too low to implement restrictions.

 

RESPONSE #2: Department of Fish, Wildlife and Parks (department) biologists determined that 66 degrees Fahrenheit was an appropriate threshold for cutthroat trout based on observations that acute mortality occurs at 68 degrees Fahrenheit.  Setting restriction criteria at 68 degrees would mean fishing restrictions would not be put in place until lethal water temperatures are reached, meaning that 68 degrees would not be much different from keeping the current 73-degree criteria in place.  By implementing restrictions when temperatures meet or exceed 66 degrees for three consecutive days, angling stress is reduced or eliminated before lethal temperatures are reached.

 

The commission amended the language in ARM 12.5.507(1)(b)(i) from the proposed language to be consistent with the language already contained in the rule. This change is administrative and not substantive.

 

COMMENT #3:  The commission received several comments suggesting alternative temperature criteria for all salmonid fisheries, not just for cutthroat trout or bull trout.

 

RESPONSE #3: Department data and review of other research indicates that 73 degrees Fahrenheit is an appropriate temperature threshold for non-native salmonid fisheries (e.g., rainbow trout and brown trout).  Lowering temperature criteria for these species would unnecessarily limit fishing opportunity prior to undue stress to individual fish from angling.  Rainbow trout and brown trout are also more resilient to warmer temperatures than native salmonids.

 

COMMENT #4: The commission received many comments opposed to adjusting the date the restrictions would remain in effect if the reopening criteria were not met.  Some comments proposed having no set date at all.

 

RESPONSE #4:  The commission agrees that establishing a date to reopen streams seems arbitrary and has amended ARM 12.5.508 so that restrictions will be lifted strictly based on temperature and flow conditions.

 

COMMENT #5: The commission received one comment stating the 66-degree temperature threshold will impact angling crowds and force more boaters into fewer fishable stretches resulting in greater fish mortality in fishable stretches.

 

RESPONSE #5: ARM 12.5.507(3) allows the department to consider other biological or environmental conditions including the concentration of angling pressure due to other restriction or closures.  If shift in angling pressure is deemed to cause increased mortality, then additional restrictions may be implemented.

 

COMMENT #6: The commission received a few comments stating cutthroat trout would be better protected going to barbless hooks and artificial flies or lures.

 

RESPONSE #6: The use of barbless hooks or bait limitations would not be expected to have a population-scale influence on fish mortality.

 

COMMENT #7:  The commission received one comment stating special provisions should be applied to the Big Hole River to include no fishing days when the flow is low.

 

RESPONSE #7:  Criteria for drought-related fishing restrictions and closures can be found in the Big Hole Watershed Committee Drought Management Plan (https://bhwc.org/montana/uploads/2022/08/DMP-2022_Final.pdf).  As outlined in the plan, fishing restrictions and closures are implemented on defined river stretches depending on water temperatures and flows.

 

 

/s/ Kevin Rechkoff                                       /s/ Lesley Robinson

Kevin Rechkoff                                            Lesley Robinson

Rule Reviewer                                             Chair

                                                                     Fish and Wildlife Commission

           

Certified to the Secretary of State September 13, 2022.