EMERGENCY REGULATIONS FILING - 08/13/2007
Basis and Purpose
Chapter 5 – Migratory Birds

Basis and Purpose:

The Wildlife Commission FINDS that adoption of these emergency regulations is imperatively necessary to ensure the preservation of public health, safety and welfare, specifically to protect the public interest in securing the maximum amount of wildlife-related recreational opportunity allowed for under the Migratory Bird Treaty Act and to allow hunters sufficient time before and after legal hunting hours to access Walk-In Access properties so they can safely place and retrieve decoys and take advantage of twilight hunting hours, which are typically the most effective for hunting waterfowl.

In early August of 2007 the Fish and Wildlife Service Regulations Committee liberalized regulations for take of dark geese in the Central Flyway portion of Colorado subsequent to the setting of the 2007-2008 season by the Colorado Wildlife Commission.  Pursuant to this action, federal frameworks now allow for a maximum of 107 days of hunting (increased from 95 days)  for dark geese in the Central Flyway portion of Colorado and a maximum daily bag limit of four dark geese (increased from three dark geese).  The Central Flyway portion of Colorado includes much of Colorado’s human population as well as a growing dark goose population.  Historically, hunting has been the primary means of population control of dark geese.  Among concerns of an overpopulated dark goose population in close proximity to a large portion of Colorado’s human population are potential disease transmission from geese and goose droppings to humans, general nuisance situations and over-utilization of available habitat associated with overpopulation.  In response to these concerns, and to secure the maximum amount of wildlife-related recreational opportunity allowed for under the Migratory Bird Treaty Act, emergency regulations have been passed pursuant to 24-4-103(6) C.R.S. to allow for more liberalized take of dark geese in the Central Flyway portion of Colorado under the expanded opportunity provided by the U.S. Fish and Wildlife Service Regulations Committee’s recent decision.

In early August of 2007 the Fish and Wildlife Service Regulations Committee liberalized regulations for take of canvasback in the Pacific Flyway portion of Colorado.  Pursuant to this action, federal regulations now allow for a bag limit of two canvasback rather than the previous limit of one.  Canvasbacks are a minor component in the Pacific Flyway portion of Colorado duck harvest, but they are a trophy duck sought after by duck hunters.  To secure the maximum amount of wildlife-related recreational opportunity allowed for under the Migratory Bird Treaty Act, emergency regulations have been passed pursuant to 24-4-103(6) C.R.S. to allow for a bag limit of two canvasbacks in the Pacific Flyway portion of Colorado under the expanded opportunity provided by the U.S. Fish and Wildlife Service Regulations Committee’s recent decision.

In addition, concern has been expressed that permitting public access on Walk-In Access properties only one hour before sunrise does not give a waterfowl hunter adequate time to set up decoys and prepare to hunt prior to the opening time of ½ hour before sunrise, potentially creating a dangerous situation for hunters as they attempt to hastily navigate difficult aquatic terrain in the dark while carrying firearms.  In response to this concern, emergency regulations have been passed pursuant to 24-4-103(6) C.R.S. to allow waterfowl hunters access to applicable Walk-In Access properties two hours before sunrise to allow for such set-up and extended until two hours after sunset to give evening waterfowl hunters adequate time to retrieve and remove decoys and other hunting aids in a safe manner.  Extending the hours of access will also allow hunters to take advantage of the twilight hours, which are generally considered to be the most productive for waterfowl hunting.

Further, the Wildlife Commission FINDS that compliance with the generally applicable requirements for final rule-making under the state Administrative Procedures Act is contrary to the public interest.  The generally applicable notice and publication requirements for final rules require that at least twenty days notice be given of any final rule-making, that such notice of final rule-making be published by the Secretary of State, and that the final rules be published for 20 days before they become effective.  Further complicating this process is the fact that the Secretary of State publishes notices of rule-making and final rules only once a month (on the 10th of each month) which greatly extends the time needed for a final rule-making.

Compliance with these generally applicable notice and publication requirements would in fact prevent the Wildlife Commission from adopting, and having in place, final regulations protecting public health and safety as well as the public welfare interest in maximizing wildlife-related recreational opportunities.

The Wildlife Commission has, to the extent it could, given notice of its emergency rule-making and allowed for public participation in the adoption of the emergency regulations.

Notice of the proposed emergency rule-making was posted at the state capitol, on the Division of Wildlife’s website, at the Division of Wildlife headquarters, Regional Service Centers, and Area Service Centers (area offices), indicating that the Wildlife Commission would consider the above emergency regulations at a specially convened meeting on August 13, 2007, in Denver, Colorado, and that an opportunity to comment would be provided to members of the public at that time.

Lastly, the Wildlife Commission believes that these changes represent an urgent priority and adoption of these regulations in emergency and permanent form is necessary and prudent.  The emergency regulations adopted will require permanent rule modifications to ensure there are effective regulations (emergency or final) during the entire 2007-2008 waterfowl hunting season.  Such final rule-making hearing has been noticed and will be conducted at the Wildlife Commission workshop on August 23.

The primary statutory authority for this regulation can be found in  §§ 33-1-101, -102, -104, -105, -108, and -110, 33-4-102, and 24-4-103, all C.R.S. as amended.

EFFECTIVE DATE - THESE REGULATIONS SHALL BECOME EFFECTIVE IMMEDIATELY UPON ADOPTION AND SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL THE PERMANENT REGULATIONS ALSO TAKE EFFECT, AND THEREAFTER ARE REPEALED, AMENDED, OR SUPERSEDED.

APPROVED AND ADOPTED BY THE WILDLIFE COMMISSION OF THE STATE OF COLORADO THIS 13th DAY OF AUGUST, 2007.
APPROVED:
Thomas M. Burke
Chairman

ATTEST:
Robert W. Bray
Secretary