BEFORE THE FISH, WILDLIFE AND PARKS COMMISSION

OF THE STATE OF MONTANA

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TO: All Concerned Persons

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1. On May 7, 2008 at 6:00 p.m. the Fish, Wildlife and Parks Commission (commission) will hold a public hearing at the Fish, Wildlife and Parks Region 3 offices located at 1400 South 19th Avenue, Bozeman, Montana to consider the adoption of the above-stated rules.

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On May 8, 2008 at 6:00 p.m. the commission will hold a public hearing at the Fish, Wildlife and Parks Region 2 offices located at 3201 Spurgin Road, Missoula, Montana to consider the adoption of the above-stated rules.

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2. The commission will make reasonable accommodations for persons with disabilities who wish to participate in the rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, please contact the commission no later than May 1, 2008, to advise us of the nature of the accommodation that you need. Please contact Jessica Snyder, Fish, Wildlife and Parks, P.O. Box 200701, Helena, MT 59620-0701; telephone (406) 444-4594; fax (406) 444-7456; e-mail [email protected].

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3. The proposed new rules provide as follows:

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NEW RULE I ANGLING RESTRICTIONS AND FISHING CLOSURE DEFINITIONS (1) "Drought Management Plan" means a unique individual watershed or stream reach plan to address site-specific stream flow and fishery issues in the event of drought that has been reviewed and accepted by the department as a preferred drought management alternative. The plans are usually created by watershed groups composed of local agriculture, conservation, business, and angler interests.

(2) "95% exceedence level" is the daily average stream flow that is equaled or exceeded in 95% of the past years of record on that date. Flows that are of 95% exceedence or higher represent an extreme low flow condition.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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NEW RULE II COMMISSION APPROVAL FOR ANGLING RESTRICTIONS OR FISHING CLOSURES (1) When the department determines, pursuant to [NEW RULE IV], that a fishery has the potential to be detrimentally impacted by environmental conditions, the commission authorizes the department to implement angling restrictions or fishing closures with the approval of the commissioner in whose district the angling restriction or fishing closure is proposed. If the commissioner is not available, the department may request approval from the commission chair or, in absence of the commission chair, any other commissioner.

(2) The department shall report to the commission, during its next regularly scheduled meeting, the implementation or lifting of any angling restriction or fishing closure implemented pursuant to this rule.

(3) Voluntary closures will not be implemented under this rule.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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NEW RULE III TYPES OF ANGLING RESTRICTION AND FISHING CLOSURES (1) The department may implement either an angling restriction or a fishing closure pursuant to [NEW RULE II].

(2) An angling restriction prohibits fishing during that period of the day when water temperatures are the highest, usually between the hours of 2:00 p.m. and midnight. The hours may be extended to cover more of the day if the criteria in [NEW RULE IV] can be established but do not necessitate a fishing closure.

(3) A fishing closure prohibits all fishing on designated waters at all times.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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NEW RULE IV ANGLING RESTRICTION AND FISHING CLOSURE CRITERIA (1) The department shall use the following criteria to determine whether to implement angling restrictions:

(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) daily maximum water temperatures reach or exceed 73 degrees Fahrenheit at any time during the day for three consecutive days;

(ii) stream or river flows fall to or below the 95% daily exceedence level based upon hydrologic records for that water body;

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

(iv) water conditions meet the criteria for angling restrictions as stated in a Drought Management Plan.

(2) A fishing closure may be implemented when:

(a) conditions of (1) develop;

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

(c) water conditions meet the criteria for fishing closures as stated in a Drought Management Plan; or

(d) other biological or environmental conditions exist that the department determines have the potential to adversely affect the fishery.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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NEW RULE V REOPENING WATERS (1) Once an angling restriction or fishing closure is implemented, it will remain in effect until September 15 or until reopening criteria described in (2) or (3) have been met.

(2) The department may reopen streams when the department determines in its discretion that:

(a) water temperature does not exceed 70 degrees Fahrenheit for three consecutive days; and

(b) eight to fourteen day climate forecast indicates improved and cooler climatic conditions.

(3) 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;

(b) eight to fourteen day climate forecast indicates improved and cooler climatic conditions; and

(c) when flow regimes provide adequate security habitat.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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NEW RULE VI NOTIFICATION OF ANGLING RESTRICTIONS OR FISHING CLOSURES (1) Prior to the effective date of the angling restriction or fishing closure the department shall:

(a) post notice of the angling restriction or fishing closure on the agency web site;

(b) post notice of the angling restriction or fishing closure at fishing access sites within the affected area; and

(c) send press releases regarding the angling restriction or fishing closure to newspapers and media outlets having general distribution in the affected watershed or water body.

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AUTH: 87-1-301, MCA

IMP: 87-1-301, MCA

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4. The proposed rules are necessary to streamline the process for closing threatened fisheries when environmental conditions occur that warrant an angling restriction or fishing closure. The proposed rules will ensure that fisheries can be restricted or closed immediately when they are threatened without a risk that a delayed process will further the threat of detrimental impacts. Low stream flow or climatic conditions may require temporary restrictions or closures from fishing to protect fish populations and sustain future angling opportunities. Currently, each time fisheries biologists find that a stream needs to be closed because of drought conditions, a quorum of commissioners must meet to adopt a new restriction.

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The commission has created the proposed rules so that the department and commission can more quickly respond to environmental conditions that could pose a threat to fisheries through additional fishing restrictions or, if necessary, closing waters to fishing. The proposed rules provide the department with the commission's guidelines for determining when water(s) should be closed to angling or when more restrictive angling regulations should be implemented.

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5. Concerned persons may submit their data, views, or arguments concerning the proposed adoption either orally or in writing at the hearings. Written data, views, or arguments may also be submitted to Mike McLane, P.O. Box 200701, Helena, MT 59620-0701, telephone (406) 444-1563, fax (406) 444-4952, or e-mail them to [email protected]. Any comments must be received no later than May 16, 2008.

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6. Rebecca Jakes Dockter or another hearings officer appointed by the department has been designated to preside over and conduct these hearings.

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7. The department maintains a list of interested persons who wish to receive notice of rulemaking actions proposed by this department or commission. Persons who wish to have their name added to the list shall make written request which includes the name and mailing address of the person to receive the notice and specifies the subject or subjects about which the person wishes to receive notice. Such written request may be mailed or delivered to Fish, Wildlife and Parks, Legal Unit, P.O. Box 200701, 1420 East Sixth Avenue, Helena, MT 59620-0701, faxed to the office at (406) 444-7456, or may be made by completing the request form at any rules hearing held by the department.

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8. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.

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Certified to the Secretary of State March 17, 2008