NOTICE OF CONTINUED PUBLIC HEARING DEPARTMENT OF GAME FISH AND

NOTICE OF CONTINUED PUBLIC HEARING DEPARTMENT OF GAME, FISH AND PARKS A continued Public Hearing will be held at the Ramkota RiverCentre in Pierre, South Dakota, on December 4, 2008, at 2:00 o’clock P.M. (CST), to consider adoption, amendment and repeal of Rules pertaining to: 1. Amend ARSD 41:03:03 – Park Licenses. Effect: The proposed amendments would increase the fee for an annual park entrance license (PEL) from $23 to $28 for the first vehicle and from $11.50 to $14 for each additional vehicle registered to the same owner (this is a change from the original proposal which would have increased the annual PEL for the first vehicle from $23 to $26 and from $11.50 to $13 for each additional vehicle); increase the fee for a temporary PEL (good for up to seven consecutive days) at Custer State Park from $5 to $6 a person or $12 to $15 a vehicle; except for Custer State Park, increase the fee for a daily PEL from $3 to $4 for each person in the motor vehicle who is 12 years of age or older, or from $5 to $6 for each vehicle; and increase the fee from $2 to $3 for each person, except the driver and step on guide, occupying a commercial motorcoach with a seating capacity of eight or more persons in any state park or recreation area. Reason: The annual park entrance license was last increased in 2006. The other PEL fees proposed for increase have remained the same since 2002 or before. Inflation has caused park operating costs to increase, most notably road repair and maintenance costs. At the same time, the department’s road repair fund utilizing state highway funds has been reduced. The $2 million in state gas tax the department has received annually for the past decade for state park road construction and upkeep has been reduced to $500,000 in 2009. The revenue generated from the proposed PEL fee increases will generate approximately $863,000 based on the number of PELs sold in 2007. The additional revenue will help offset the reduction in state gas tax funding available for state park roads and fund park operating costs. 2. Amend ARSD 41:03:04 – Camping Permits and Rules. The proposed amendments would increase the fee from $15 to $25 to cancel a Effect: reservation for a camping cabin or rent-a-camper through the reservation system or after arrival at the park; increase the fee from $15 to $25 to cancel or shorten a reservation for a lodge more than 30 days prior to the scheduled arrival date; and increase the fee from $3 to $4 to purchase a cubic foot of firewood in a state park, state recreation areas and lakeside use areas where firewood is sold by the department. Reason: The reservation cancellation fee is a tool used to discourage abuse of the reservation system. Without a cancellation fee, folks have little incentive not to reserve days on the front side of their intended stay to ensure getting a reservation, then canceling those front end days before their arrival that they never intended to use. The cancellation fee for a campsite is an amount equal to one night’s camping. The proposed increase in the cancellation fee for camping cabin and park lodge stays, places this fee more in line with the cancellation fee for campsites. Based on 895 camping cabin and lodge reservations cancelled in 2007, increasing the cancellation fee from $15 to $25 will generate an additional $8,950. The cost for a cubic foot (bundle) of firewood has been $3 since 1999 when it was raised from $2. This is a service that the camping public wants but the $1 price increase is needed to help recoup the department’s cost of gathering, splitting and bundling the firewood for sale. The $1 increase will generate an additional $27,511 annually based on 27,511 bundles of firewood sold in 2007. 3. Amend ARSD 41:07:01 – General Provisions (Fishing Seasons and Methods) The proposed amendments would (a) exempt persons who wish to stock tilapia Effect: in indoor aquaculture facilities from having to obtain prior GFP Commission approval; and (b) increase resident and non-resident fees for paddlefish permits from $5.00 for residents and $10.00 for non-residents, to $20.00 for both residents and non-residents, to match fees charged for paddlefish permits in Nebraska. Reason: (a) Tilapia is a warm water fish species used in indoor aquaculture facilities to produce fish for human consumption. They can not survive in natural waters of the state overwinter. Fisheries staff has no concerns that allowing tilapia to be stocked in indoor aquaculture facilities without prior Commission approval will have any impact on wild fish stocks. (b) Nebraska increased fees for both resident and non-resident paddlefish archery and snagging permits to $20.00 for 2008, with a one dollar issuance fee. The paddlefish fishery in the NE/SD boundary waters of the Missouri River below Gavins Point Dam is co-managed by both states. While the fee is the same for SD and nonresident anglers, a fishing license is required, so nonresidents (except NE residents), still pay more than residents for the opportunity to take paddlefish by archery or snagging. 4. Amend ARSD 41:07:03 – Fish Limits. The proposed amendments would (a) repeal the present rule which includes lake Effect: herring and lake whitefish with the combined daily limits for trout and salmon, and instead place lake herring and lake whitefish in the rule which designates species without daily limit; (b) remove the 24-inch minimum size limit and daily limit of one walleye from Diamond and Beaver Lakes in Minnehaha County and manage these waters under the statewide regulations of 4 walleye daily with no more than one fish of 20 inches or greater in length; and (c) adds lift nets and cast nets as legal gear and defines seines, dip nets, lift nets and cast nets legal for taking smelt in the same manner these nets are defined in the bait rules. Reason: (a) Lake herring and lake whitefish are currently included in the daily limit for trout and salmon species combined, for the inland waters of the Missouri River. Lake whitefish were stocked during the 1970’s and early 1980’s but natural production was limited and a fishery never developed. Lake whitefish are infrequently caught in fish population gill nets, with the frequency of catch decreasing over time. Lake herring were introduced as an additional coldwater prey fish in Lake Oahe during the 1980’s and have become established, with annual production being highly variable. Lake herring are incidentally caught by salmon anglers on Lake Oahe. Repealing the rule which requires lake herring and lake whitefish to be included in the combined daily limit for trout and salmon for the inland waters of the Missouri River would simplify regulations by having the same daily and possession limits for salmonids state-wide and allow anglers to keep incidentally-caught lake herring and lake whitefish without affecting an anglers daily limit for salmon and trout. (b) The 24-inch minimum size limit and daily limit of one walleye was implemented on Twin, Beaver, and Diamond Lakes in Minnehaha County to accomplish management objectives of bullhead control and increased catch rates for walleye in lakes near a large metropolitan area where high angler use may occur. These objectives have been met on Twin Lakes but not on Diamond and Beaver Lakes. On Beaver Lake, the Department was unable to establish a high-density walleye population due to poor stocking survival. Thus, the regulation could not accomplish the management objectives of bullhead control and high walleye catch rates. In addition, the entire fish population in Beaver Lake was wiped out by winter kill in 2008. Removing the regulation would also reduce the need for special law enforcement efforts to ensure regulation compliance. On Diamond Lake, the regulation was reducing bullhead abundance and increasing walleye catch rates but the highdensity walleye population also wiped out a good perch fishery. Other factors involved in the decision to remove the Diamond Lake regulation included low oxygen levels during the winter of 2008, lack of forage resulting in slowed walleye growth rates and increased angler opposition to the regulation. (c) Rainbow smelt are not a game fish but a daily limit exists for this species. Dimensions of nets legal to take smelt have never been defined. Establishing dimensions for seines, dip nets, lift nets and cast nets will provide guidance for people pursuing smelt as to appropriate gear. 5. Amend ARSD 41:09:04 – Bait and Biological Specimens. The proposed amendments would (a) amend ARSD 41:09:04:02 by replacing Effect: the word “fishers” with the word “anglers”, delete the words “and biological specimens” and add the words “from the waters of the state”; (b) change the title of ARSD 41:09:04:02.02 and amend the rule to clearly define the species that can be taken and sold as bait by commercial bait dealers and delete biological specimens from the rule; (c) create a new rule which lists species that may be taken as bait for noncommercial use; (d) change the title of ARSD 41:09:04:02.03 and completely rewrite the text of the rule to set out the daily and possession limits for the species which a lawful angler may take and possess for noncommercial use and specifies that the limits do not apply to bait purchased from licensed bait dealers; (e) amend ARSD 41:09:04:03 to remove the words “and biological specimens,” make minor revisions to the text of the rule for purposes of clarity, add East Krause, Middle Lynn (both in Day County) and Lake Alice (Deuel County) to the list of waters closed to commercial take of bait, and delete that portion of the rule that allows commercial take of mollusks by special permit from the secretary; (f) amend ARSD 41:09:04:04 to clearly separate and define the gear allowed for commercial and noncommercial use, allow the department secretary or a designee to approve special equipment requests, add language clarifying that the bait possession limits do not apply to bait purchased from a licensed bait dealer, and make minor revisions to the text of the rule; (g) amend ARSD 41:09:04:05 to require that bait traps be lifted and emptied of fish at least once every 48 hours between May 15 and September 14 (presently April 1 and October 31) and every 96 hours between September 15 and May 14 (presently November 1 and March 31); (h) change the title of ARSD 41:09:04:06 and amend the rule to require that bait traps must be marked with the licensee’s name and address, delete the text which provides that trap can be marked anywhere else the owner wishes, require that lost traps be reported in 5 days instead of 10, allow reporting of lost traps to any conservation officer, and delete the requirement that owners are responsible for violations involving lost traps; (i) delete the words “Rough fish to be destroyed” from the title of ARSD 41:09:04:07, make minor revisions to the text of the rule for purposes of clarity, and amend the rule to allow rough fish to be destroyed but not make it mandatory to do so; (j) amend ARSD 41:09:04:09 to add the words “and gill-breathing animals” to the existing text; (k) amend ARSD 41:09:04:12 to add language allowing a bait dealer with a private hatchery license to transport other fish while transporting baitfish under certain conditions; (l) amend ARSD 41:09:04:13 by deleting the second full sentence of the rule which presently allows the department secretary to approve the importation of reptiles, amphibians, crustaceans and mollusks for private introduction, culture or commercial purposes; (m) amend both the title and text of ARSD 41:09:04:14 to clarify that the rule applies to “bait dealers” as opposed to simply “dealer” as presently appears in the rule; (n) amend ARSD 41:09:04:16 to specify that records required in this section shall be recorded and maintained on forms provided by the department, specify the records required for each type of bait dealer license, require that records be kept current and available for inspection during normal business hours, and require records to be submitted by January 31 before a new license will be issued; and (o) amend both the title and text of ARSD 41:09:04:17 to clarify that a conviction for violating the bait dealer rules by a licensee or his agents and employees may be cause for immediate revocation of bait dealer’s current license and for the department’s refusal to issue a license for the calendar year following the year of conviction. Reason: (a) The department is removing all references to biological specimens from the bait rules and intends to establish a new chapter for biological specimens in the future. (b) This rule, in its current form, is confusing because it combines commercial and noncommercial use. The proposed changes will clearly separate commercial from noncommercial use, eliminate reference to biological specimens, and clearly list the species allowed for commercial use. (c) This proposed rule will clearly list the species of bait that lawful anglers can use. (d) This rule change will clearly define the limits for the bait species a lawful angler may take and possess and specify that the limits do not apply to bait purchased from a licensed bait dealer. (e) Removing reference to biological specimens is needed to maintain consistency with the rest of the chapter. Editing the text of the rule will make it easier to understand. East Krause and Middle Lynn have been stocked with gizzard shad as a component of a research study and Lake Alice contains the exotic species European rudd. The staff does not believe the commercial fishing of mollusks should be allowed because native populations are already under duress from degraded water quality. (f) The current rule is long and hard to understand. The proposed edits will shorten the rule and make it easier to understand. Proposed changes will clearly define and separate the types and specifications of gear allowed for use by anglers and commercial bait dealers and clarify that it is not necessary for the department secretary to approve special equipment permits. (g) This amendment is being made at the request of bait dealers to coincide with water temperatures that allow longer check times. (h) Bait dealers commonly loan, lease and rent bait traps to other dealers. This proposal would require the user of the trap to have their name and address on it, making law enforcement investigations easier. The text stating the owner can mark the trap wherever they wish is irrelevant. Reducing the notification period for lost traps to five days will allow more effective law enforcement investigations. With modern communications, lost traps can be reported to any officer. In law enforcement’s opinion, it is not feasible to hold an owner or licensee liable for violations involving lost traps. (i) Requiring the mandatory destruction of rough fish is useless for population control, especially in larger waters. However, in some instances, a bait dealer may want to remove rough fish from small waters to reduce competition with bait fish. (j) This proposal simply adds consistency and clarity to the rule. (k) Several bait dealers also possess private hatchery licenses and they have requested having the ability to transport bait and game fish together on one truck for efficiency and economy. GFP feels this is reasonable but also has concerns with game fish being added to private hatchery inventories if mixed transport is allowed anytime except during direct delivery to customers. (l) The Department Secretary does not need to authorize the export of sucker spawn and frogs. Rules pertaining to the importation of reptiles, etc., do not belong in this rule and will be relocated to a new non-game chapter in the future. (m) The proposal will add clarity to the rule. (n) These proposed changes are needed to ensure bait dealers provide complete and timely records before getting a new license. The information provided will be entered in a data base and used to produce an annual report. (o) Currently, multiple offenders are still able to obtain licenses and keep operating. These proposed changes are intended to promote compliance with bait rules by increasing the severity of the consequences of violation. 6. Effect: Amend ARSD 41:09:07 – Private Fish Hatcheries. The proposed amendments would (a) amend ARSD 41:09:07:02 to provide greater detail about the aquaculture license, establish a fee of $200 for both new licenses and annual license renewals; establish a one-time inspection fee of $300 for each new facility, manmade water and natural water requiring prior department approval, including those added to an existing license, provide greater detail concerning the fee fishing aquaculture license, establish fees for the fee fishing license ($100 for both new and renewal licenses and a one-time inspection fee of $300 for each new facility, man-made water and natural water requiring prior department approval, including those added to an existing license), and eliminate the pond management hatchery license; (b) amend ARSD 41:09:07:03.01 to establish a deadline of January 1 annually to renew a private fish hatchery license and to request addition of new waters and facilities to an existing license; (c) amend ARSD 41:09:07:03.02 to clarify existing criteria for approval of a private fish hatchery license, delete the criteria requiring that the source of fish be disease free and requiring compliance with importation rules, and adding criteria which specifies that access to the proposed facilities or waters must be entirely controlled by the applicant and the proposed facilities or waters do not contain aquatic nuisance species; (d) amend ARSD 41:09:07:06.01 to require that the private fish hatchery license be available for inspection rather than displayed; (e) amend ARSD 41:09:07:06.03 to require that all facilities and waters covered under a private fish hatchery license are subject to inspection by the department at any reasonable time; (f) amend ARSD 41:09:07:06.04 to require annual health inspections of any licensed aquaculture facility for diseases of regulatory concern and aquatic nuisance species, and establishing specific fish health inspection requirements; (g) amend ARSD 41:09:07:07 to clarify that a conviction for violating the private fish hatchery rules by a licensee or his agents and employees may be cause for immediate revocation of the violator’s current license and for the department’s refusal to issue a license to the violator for the calendar year following the year of conviction. Reason: (a) The changes in the name and description of the aquaculture license are needed to more accurately reflect the uses of this license today. Much of the aquaculture in South Dakota is currently conducted in privately-accessible, natural waters. The fees for this license need to be raised to help the Department recover some of the costs incurred when staff resources are needed to conduct inspections of these waters and facilities. The pond management license is no longer needed because the Department can permit landowners to manage their ponds by issuing special equipment permits. (b) The January 1 deadline is needed to give Department staff adequate time to process applications and plan inspections in the spring. (c) The deleted criteria were not needed because they are irrelevant to the approval of a hatchery license. The added criteria concerning ownership was needed to rectify past conflicts that arose when the land surrounding a body of water was owned by more than one person or publicly owned. (d) Not all private hatchery licensees have a facility in which to display a license. (e) The current rule only deals with facilities but many private hatcheries also use man-made and natural waters to propagate fish. (f) The current rule only dealt with facilities containing salmonids. The proposed changes will require inspections for all facilities. (g) These proposed changes are intended to promote compliance with private fish hatchery rules by increasing the severity of the consequences of violation. 14. Effect: Amend ARSD 41:09:08 – Importation of Fish. The proposed amendments would repeal ARSD 41:09:08:03.02 and ARSD 41:09:08:03.05, respectively, which establish fish health inspection and accepted guidelines and importation requirements for fish or fish reproductive products obtained from a non-salmonid facility, and incorporate the requirements set forth in the repealed rules in a revised ARSD 41:09:08:03.04 which will establish importation requirements for fish or fish reproductive products and eliminate the distinction in the former rules between salmonids and non-salmonids. Reason: Various aquatic nuisance species, including diseases such as VHS, pose a threat to South Dakota waters and the importation of fish and fish reproductive products are a likely pathway for their entrance into the state. The changes proposed are needed to protect South Dakota’s aquatic resources from these threats. The above rule amendments were originally proposed at the October 2008 GFP Commission meeting. A hearing was scheduled for November 6, 2008, at 2:00 P.M., at the Ramkota RiverCentre in Pierre, South Dakota, at which time the GFP Commission was to consider the above described rule amendments, but the hearing did not take place because of the cancellation of the November 2008 GFP Commission meeting due to inclement weather. The proposed rules may be modified or amended after the continued Hearing to include or exclude matters that are described in this Notice of Continued Public Hearing. The hearing may be continued from time to time until its business has been completed and may be rescheduled. Interested persons will be given reasonable opportunity to submit data, opinions, arguments and their views, either orally or in writing (or both) at the continued Hearing. Persons unable to attend the continued Hearing may mail data, opinions, arguments, and their views to the office of the Secretary of the Department of Game, Fish and Parks, Foss Building, 523 East Capitol, Pierre, South Dakota 57501, or transmit by E-Mail to chuck.schlueter@state.sd.us. All persons who desire to submit written data, opinions, arguments, and their views by mail or EMail are encouraged to mail or transmit the same in sufficient time so that it is received by and in the office of the Secretary of the Department of Game, Fish and Parks on or before 12:00 o’clock P.M. three (3) days prior to the date of the continued Hearing. Interested persons will be given reasonable opportunity to submit data, opinions, arguments and their views, either orally or in writing (or both) to the Commission for its consideration. All written and E-Mail comments must include the commenter’s name and mailing address. Copies of the proposed rules may be requested from the office of the Secretary of the Department of Game, Fish and Parks, Foss Building, 523 East Capitol, Pierre, South Dakota 57501. Handicapped persons may contact the undersigned for assistance. Dated this _____ day of November, 2008. (SEAL) ____________________________________ Jeffrey R. Vonk, Secretary NOTICE OF PUBLIC HEARING DEPARTMENT OF GAME, FISH AND PARKS A Public Hearing will be held at the Ramkota RiverCentre Convention Center, 902 W. Sioux Avenue, Pierre, South Dakota, on December 4, 2008, at 2:00 o’clock P.M. (CST), to consider adoption, amendment and repeal of Rules pertaining to: 1. Amend ARSD 41:03:04 – Camping Permits and Rules. Effect: The proposed amendment would increase the campsite reservation fee for nonresidents from $5.00 to $7.70. Reason: South Dakota has a very popular on/line & telephone advance reservation service for its state park campgrounds. The increased fee of $7.70 will cover the Division’s actual cost for making a reservation through our reservation system vendor. The campsite reservation fee applies to non residents only. The increase based on the number of non-resident reservations made in 2007 (19,780) will generate $53,406. These funds will be used to offset the cost of the reservation system which is part of the operating cost of the state park system. 2. Amend ARSD 41:06:13 – Spring Wild Turkey Hunting Season. Effect: The proposed amendments would establish season dates, requirements and restrictions; establish the number of licenses/tags available which will include offering residents 970 less one-tag “male turkey” and 1,140 more two-tag “any turkey” licenses for the Prairie Units than 2008 for an overall increase of 1,310 tags (+11%); offer nonresidents 28 less one-tag “male turkey” and 34 more two-tag “any turkey” licenses for the Prairie Units than 2008 for an overall increase of 40 tags (+5%); combine Perkins County units 53A and 53B to make one unit (53A); combine Marshall (48A) and Roberts (55A) Counties into one unit (48A) with one season; eliminate the split season for the Day/Codington County units (22A and 22B) and create one unit (22A) with one season; open Moody and Hand Counties to statewide archery hunting, and close Brookings County to archery hunting west of I-29; strike language in the rule pertaining to sales of leftover licenses as such sales are already addressed in the “Application for License” rules (ARSD 41:06:01); eliminate the use of rifles to hunt turkeys in the Black Hills and restrict to bow and arrow, a shot gun using shot shells or a muzzleloading shotgun; add units 07A, 12A, 13A, 17A, 19A, 19B, 36A, 44A, 44B, 62A and 62B to those units restricted to bow and arrow, a shotgun using shot shells or a muzzleloading shotgun, thereby placing all units in eastern South Dakota under this restriction; and add unit PST-ZZ1 to the rule for the purchase of a preference point. Reason: Provide hunting opportunity consistent with wildlife management objectives. The proposed amendments would also eliminate the use of a rifle to hunt wild turkey in the Black Hills and all units in eastern South Dakota for public safety reasons. 3. Amend ARSD 41:06:15 – Custer State Park Spring Wild Turkey Hunting Season Effect: The proposed amendments would increase the number of resident one-tag “male turkey” licenses available in Unit 1 (CST-CU1-32) from 125 to 135, and would add a Unit 2 (CST-ZZ1-99) in which no turkey license will be issued but an applicant for this unit shall accrue a preference point. Reason: In 2008, the department collected information from 106 report cards (85% reporting rate). Rifles were excluded in 2008 and most hunters used shotguns (92%), followed by combination shotgun/bow hunters (4%), and bow hunters (4%). The majority of birds harvested were mature gobblers (2+ years of age) at 95%, with a break down of ages including juveniles at 5%, 2-year olds at 45%, 3-year olds at 24%, 4-year olds at 10%, and 5+-year olds at 16%. Most comments indicated an excellent hunt and hunters enjoyed the experience. The turkey population in the park is healthy. Staff believes an increase in the number of tags by 10 will not negatively impact the quality of the hunt, the quality of the birds for harvest (age structure) nor significantly increase the risk of elk disturbance and movement out of the park. Staff will continue to monitor elk herd movement in the park during the turkey season. 4. Amend ARSD 41:06:16 – Waterfowl Hunting Season Effect: The proposed amendments would retain the light goose Conservation Order and establish requirements and restrictions, season dates, open area, daily bag and possession limits for light geese; and change the dates for the light goose Conservation Order from February 10 through May 8 to February 14 through May 3. Reason: Provide hunting opportunity consistent with wildlife management objectives. 5. Amend ARSD 41:07:06 – Spearing. Effect: The proposed amendment would add legal bow and arrow as a method for taking game fish in the areas listed in the rule as being open to spearing of game fish. Reason: Prior to a change in this rule for 2008, this rule stated that game fish could be “speared.” This statement was interpreted by staff to mean game fish could be taken by legal spear, handheld spear, or bow and arrow. Changes to this rule for 2008 included replacing the word “speared” with the term “legal spear gun or handheld spear,” which clarified legal methods of take and effectively removed bow and arrow as a legal method for taking game fish. Staff believed there were no opportunities to use bow and arrow to effectively take game fish during the period open to taking of game fish (sunrise to sunset, June 15th to the last day of February) and bow and arrow would be a method of take for rough fish. However, the department has been contacted this fall by a number of people wishing to specifically include bow and arrow as a legal method of take for game fish. The primary game fish species of interest for bow fishing is Chinook salmon on Lake Oahe. Adding legal bow and arrow as a legal method of take will have no adverse affects on fish populations in waters currently open to spearing of game fish. The above rule proposals may be modified or amended following receipt of public comment at the hearing to include or exclude matters that are described in this Notice of Hearing. The Hearing may be continued from time to time until its business has been completed and may be rescheduled. Interested persons will be given reasonable opportunity to submit data, opinions, arguments and their views, either orally or in writing (or both) at the Hearing. Persons unable to attend the Hearing may mail data, opinions, arguments, and their views to the office of the Secretary of the Department of Game, Fish and Parks, Foss Building, 523 East Capitol, Pierre, South Dakota 57501, or transmit by E-Mail to chuck.schlueter@state.sd.us. All persons who desire to submit written data, opinions, arguments, and their views by mail or E-Mail are encouraged to mail or transmit the same in sufficient time so that it is received by and in the office of the Secretary of the Department of Game, Fish and Parks on or before 12:00 o’clock P.M. three (3) days prior to the date of Hearing. Interested persons will be given reasonable opportunity to submit data, opinions, arguments and their views, either orally or in writing (or both) to the Commission for their consideration. All written and E-Mail comments must include the name and mailing address of the person submitting the comments. Copies of the proposed rules may be requested from the office of the Secretary of the Department of Game, Fish and Parks, Foss Building, 523 East Capitol, Pierre, South Dakota 57501. Persons with disabilities may contact the undersigned for assistance. Dated this ______ day of November, 2008. (SEAL) ____________________________________ Jeffrey R. Vonk, Secretary