The following is a summary of the amendments contained in this rule making:

• Prohibit the act of chumming with fish eggs.

• Define “tip-ups,” a device used in ice fishing.

• Prohibit the sale of trout and Atlantic salmon eggs.

• Establish a bait fish “Green List,” establishing what bait fish are acceptable for use, and secondly, identify additional waters where additional species can be used as bait.

• Establish that, in addition to the bait fish “Green List,” any fish legally taken on a water body may continue be used as bait on that same body of water except on designated waters where the use of bait fish is not allowed or as prohibited by another provision of law or regulation.

• Establish that dead fish, preserved and packaged in conformance with other provisions of law or regulation, may be used as bait.

• Remove American eels from the list of fish that can be spearfished.

• Clarify that “whitefish” in the Statewide Angling Regulations does not include round whitefish.

• Restrict the use of weight on the line, leader, swivels or artificial flys used in Salmon River Fly Fishing, providing consistency with the Great Lakes regulations.

• Refine the allowable fishing tackle that may be used in the special regulations fly fishing catch and release areas on the Salmon River in Oswego County, clarifying what can be used in this fly fishing only area.

• Extend the winter “catch and release only” black bass season in Suffolk and Nassau Counties.

• Remove the special regulation for trout in Greenwood Lake in Orange County.

• Remove the special regulation for black bass in Greenwood Lake in Orange County.

• Establish a special regulation for kokanee salmon in Glass Lake in Rensselaer County with a creel limit of three fish and 12 inch minimum size limit.

• Establish a three fish creel limit with a minimum size limit of 12 inches for trout in Beardsley Lake in Montgomery and Herkimer Counties, Kyser Lake in Fulton and Herkimer Counties, and Stillwater Reservoir in Herkimer County.

• Reduce the creel limit on walleye and sauger in Lake Champlain to “3 fish in combination.”

• Provide clarity to the description of the Boquet River portion of the “Additional Lake Champlain Tributary Regulations.”

• Prohibit the use of bait fish in waters such as the Henderson Lake in the Town of Newcomb in Essex County, and in the Giant Mountain Wilderness Area.

• Prohibit the use of bait fish in Wheeler and Clear Ponds in the Town of Webb in Herkimer County.

• Add the ponds and streams in the Raquette-Boreal Wilderness Area to the list of waters that restrict the use of bait fish.

• Remove the special regulations that prohibit fishing in Lake George tributaries (in Essex, Warren and Washington Counties) from October 1 to March 15 at any time and from April 1 to May 15th from 10 p.m. to 5 a..m.

• Create a three fish creel limit with a minimum size limit of 12 inches for trout in the ponds contained with the Massawepie Conservation Easement Area in St. Lawrence County (Pine, Boottree, Town Line, Deer and Horseshoe) as well as within Tamarack Pond in St. Lawrence County.

• Eliminate the ice fishing permitted regulation on the Mohawk River (Barge Canal) in Herkimer County.

• Create a catch and release, use of artificial lures only, regulation in Wheeler and Clear Ponds in the Town of Webb in Herkimer County.

• Eliminate the special regulation for walleye on Lake Bonaparte in Lewis County and on Trout Lake in Lewis County.

• Create a special trout regulation, with a creel limit of five fish, with no more than two fish longer than 12 inches, on the Lansing Kill in Oneida County.

• Eliminate the special regulation prohibiting smelt fishing in Portaferry Lake in St. Lawrence County.

• Extend the catch and release section for trout of West Canada Creek in Herkimer and Oneida Counties.

• Extend the current year round catch and release season for trout on the West Branch St. Regis in St. Lawrence County to all year.

• Eliminate the special regulation requiring catch and release fishing for trout on the South Branch of the Grass River in St. Lawrence County and replace with the statewide regulation.

• Modify the wording for the area in Jefferson County that is exempt from the 50 fish limit on yellow perch and sunfish.

• Modify the wording for the area in Jefferson County, that is exempt from the statewide black bass catch and release season.

• Modify the creel limit and size limit for muskellunge and tiger muskellunge in the border waters of the Delaware River and West Branch Delaware River.

• Eliminate the special regulation requiring catch and release fishing for trout on Allen Pond in St. Lawrence County and replace it with a three fish creel limit and 12 inch minimum size limit.

• Remove the special regulation for lake trout on Woodhull Lake in Herkimer County.

• Establish a special regulation for Ellicott Creek in Erie County.

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Job Impact Statement. Because only non-substantive changes were made in the final rule, the originally published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, Job Impact Statement does not need to be revised.

The following is a summary of the comments received and the Department's response to those comments. Comments are collectively organized according to the specific regulation change that they address.

PROPOSAL: Establish a list of bait fish (i.e. “Green List”) that can be used statewide.

Comment: Cut bait (including dead cut herring) should be added to the “Green List”.

Response: The rule making has been adjusted to provide for the use of dead fish as bait under certain conditions provided it is preserved other than solely by freezing (to safeguard against the spread of fish pathogens).

Comment: The regulations should indicate that the use of frozen/dead baits that are brined/salted are not restricted by this rule making.

Response: The rule making has been adjusted to provide for the use of dead fish that are brined and salted.

Comment: The list of species of bait is too limiting and should be expanded to include several other species historically used and not in danger in New York State (i.e. regionally abundant). Adding additional species will provide anglers with ready access to site specific bait. A second option is to leave the bait fish list as currently defined in the ECL with the stipulation that it does not include threatened or endangered fish.

Response: Many of the species suggested as additions are not easily identified and could be confused with species that are listed in New York as “endangered, threatened, or of special concern”. In addition, the sculpins suggested for inclusion may be mistaken for round goby, an undesirable invader. The intent of the “Green List” is to allow for the most commonly used baitfish, while keeping the list relatively small and simple and not impacting an angler's opportunity to fish with live bait. The list was designed to protect New York's many rare species that could be confused with baitfish and to prevent the accidental introduction of unwanted or invasive species in additional waters. In addition, any fish legally taken from a water body of the State may be possessed and used as bait on that same water body, except in designated waters where the use of bait fish is not allowed or where use is prohibited by another provision of law or regulation.

PROPOSAL: Extend the catch and release section for trout on West Canada Creek in Herkimer and Oneida Counties.

Comment: Two and a half miles is already in place, and this proposal just complicates where anyone fishes.

Response: The catch and release regulation will apply to a small portion of West Canada Creek. West Canada Creek has approximately 30 miles of stocked fishable water of which the 4 mile catch and release section represents only 13.3 percent of the fishable trout water.

Comment: The proposed section should be kept, as is, as it is important to people that have disabilities and cannot walk long distances to fish; there are three places where one can fish with children.

Response: Twelve state-owned fishing areas are located on stream sections where this special regulation will not apply, thereby facilitating access to people of all abilities.

Comment: Since DEC is not enforcing the regulations in the current no-kill section of West Canada Creek, and violations are occurring, it makes no sense to extend the catch and release only section.

Response: Law Enforcement has increased its patrols on West Canada Creek in the last two years. Many of the anglers that Law Enforcement would encounter illegally fishing the present catch and release section would claim that they did not know where the mouth of Cincinnati Creek was located. The rule making's designation of the Comstock Bridge should resolve this problem.

Comment: Fly fishermen and spinner bait fishermen can fish anywhere and bait fishermen are eliminated from fishing this area.

Response: Department creel surveys show anglers support for the establishment of restricted harvest areas on this water. There is an abundance of additional stream fishing that allows for harvest and the use of natural baits.

PROPOSAL: Refining allowable fishing tackle in the special regulations fly fishing catch and release areas on the Salmon River in Oswego County.

Comment: If DEC wants to enforce current law against foul hooking and snagging fish in the fly only sections they can do it under current law.

Response: The purpose of the regulation is solely to narrow the definition of what traditional fly-fishing is. Whether fish are foul hooked or not was not germane to the proposed rule making. Both fly fisherman and spin fishermen requested clarity on defining fly fishing in the special areas. Anglers pursuing a traditional fly fishing experience wondered about the allowance of the use of weight to cast the line which is essentially a spin fishing technique.

Comment: Legitimate angling techniques should not be outlawed for the purposes of appeasing a vocal minority or special interest group.

Response: The special regulation fly fishing areas on the Salmon River were originally intended to provide a special fly fishing experience. There is just under a mile of flyfishing area that the regulation would apply to. Anglers have an additional 16 miles of the Salmon River that this would not apply to, and where any legal angling techniques can be used.

Comment: While some limit in weight makes sense, some weight should be permitted, including on a fly such as a copper john (i.e. a popular fly used in fly fishing). Adding a few split shots to a leader within 4 feet of the fly allows the fly to get at face level with the fish and it gives the fish a better chance of eating/hiting the fly if it is in their vision plane.

Response: Flys may have up to 1/8 ounce of added weight and supplemental weight (i.e. split shot) may be added to the leader within 4 feet of the fly (except for May 1st through August 15th when no supplemental weight may be added to the leader). The weight, however, must not be the primary means of propelling the cast. The flyline must propel the cast; and the purpose of the weight must be to sink the fly.

Comment: Doing away with the use of running line is acceptable; a regulation indicating that the weight of the line must be what you are casting should be implemented. Using a weighted fly or putting on a little split shot to fish under a strike indicator or to assist in getting an angler’s fly down in front of the fish should be allowed for.

Response: This is the intent of the proposal and all of the above noted in the comment is allowable.

Comment: Another regulation regarding the use of running line without the floating/sinking heads is again outlawing a standard practice in this fishery. While this practice has been pioneered, and in cold climates, during much of the steelhead season, too much ice will build up on regular large diameter fly lines and will be counter productive to fishing.

Response: Conditions in the Salmon River, since baseflows were initiated in 1996, have dramatically reduced high flow events under which the running line technique provided a means of getting the fly down to the fish. While high flow events still occur, although less frequently, the recent technological advances in fly lines has decreased the need to utilize the running line technique. Fifteen miles of accessible river are available to those wishing to use the running line technique. The intent of the proposal is to provide opportunity for a traditional fly fishing experience.

Comment: Adding weight to fishing line in the Lower Fly fishing zone should continue to be allowed. It should be eliminated for the Upper Fly fishing zone.

Response: Added weight is allowed in both special regulations fly fishing during their open seasons except for the time period from May 1st through August 15th. There is legitimate use for weight during the fall season in both the Upper and Lower fly fishing zones so the Department is not proposing that it be eliminated. In the summer, some salmonids are aggressive enough to come up and take the fly but one generally has to get it down to the fish's level in the Fall (when there are more salmon).

Comment: Fish will always be subjected to foul hooking, under various conditions, no matter the method of fishing, if it is the intention of the angler, including under the allowable setup proposed. New ways of snagging fish with heave sink tips (and similar) will be used to circumvent the law, if intended.

Response: The proposed regulation is intended to more stringently define allowable fly fishing techniques in the special regulations areas, not to address the illegal foul hooking of fish, which is an enforcement matter in any event.

Comment: If the issue behind this proposed regulation is to reduce or minimize the potential to foul hook or snag fish, other methods should be employed without catering to a preferred method of fly fishing.

Response: The purpose of this proposal is not to reduce or minimize the potential to foul hook or snag fish.

Comment: The proposal is an attempt to legislate behavior and intention which cannot really be regulated effectively. Adding additional weight to fly fishing gear is a proven technique for fishing nymphs and egg imitations.

Response: The proposal defines what fly fishing techniques are allowed within the special regulations fly fishing areas; it is not an attempt to legislate behavior. The use of weight is still allowed, to sink the fly but it may not be used as the primary means of propelling the cast. The fly line must be the primary means of propelling the cast.

PROPOSAL: Prohibit the sale of trout eggs and Atlantic salmon eggs in all freshwaters of New York State.

Comment: Sale of eggs taken from fish by anglers, and then sold to local tackle shops should be prevented but shops should be allowed to sell tied sacs. Anglers should be allowed to acquire trout eggs for fishing. There is no harm with the sale of trout eggs taken from a freshly caught fish.

Response: This proposal will clarify the original intent of the existing section 11-1319(2)(a) of the Environmental Conservation Law which states that: “trout, including rainbow trout, Atlantic salmon, black bass, walleye and muskellunge shall not be bought and sold.” It was always presumed that eggs from the above listed species were also illegal for sale. In fact, no bait shops in New York are known to be selling trout eggs at this time (only salmon eggs, which will still be legal for sale). If trout eggs were allowed for sale, it would encourage additional harvest primarily of lake run brown and rainbow trout from the tributaries of Lake Erie, Lake Champlain, and the Finger Lakes, where angler catch rates are currently at a very high (desirable) level.

PROPOSAL: Define tip ups for use in ice fishing in all freshwaters of New York State.

Comment: The definition of a tip up could include indicating that a tip up may have a reel for storing line only and not for bringing in fish.

Response: The definition of a tip up does not preclude the inclusion of a reel.

PROPOSAL: Create a 12 inch and three fish daily limit for brook trout in Pine, Boottree, Town Line, Deer and Horseshoe Ponds within the Massawepie Conservation Easement.

Comment: Do not set a size limit (12 inches) as the mortality rate of released smaller trout will be very high.

Response: These waters have been known to be susceptable to excessive harvest under the current regulation (any size with a creel limit of five fish). The current regulation, with the more liberal creel limit and no size limit, creates the opportunity for higher exploitation of brook trout in these waters, and limits the opportunity for trout to reach larger sizes, including for reproduction. This regulation is also necessary to protect a water that serves as a brood source for Little Tupper strain brook trout.