Order of the State of Wisconsin Natural Resources Board
Amending, Repealing and Creating Rules
The statement of scope for this rule, SS 065-16 was approved by the Governor on July 18, 2016, published in Register No. 727B on July 25, 2016, and approved by the Natural Resources Board on September 28, 2016. This rule was approved by the Governor on January 11, 2017.
The Wisconsin Natural Resources Board proposes an order to amend NR 20.20 (73) (n) 4., 25.06 (1) (a) 1. to 3., and 26.02 (1), to repeal 25.10 (1) (b) 8., and to create 20.20 (73) (n) 5. Wis. Adm. Code, relating to lake trout harvest limits in Lake Superior and affecting small business.
Note: Notwithstanding the repeal and recreation of ch. NR 20.20 on April 20, 2016, by CR 14-023, this emergency rule shall remain in effect until the initial 150 day effective period and all extension periods under s. 227.24 have expired.
Analysis Prepared by the Department of Natural Resources
Explanation of Agency Authority: Section 29.014 (1), Stats., directs the department to establish and maintain conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing. Section 29.041, Stats., provides that the department may regulate fishing on and in all interstate boundary waters and outlying waters. Section 29.519 (1m) (b), Stats., authorizes the department to limit the number of Great Lakes commercial fishing licenses, designate the areas in the outlying waters under the jurisdiction of this state where commercial fishing operations are restricted, establish species harvest limits, and designate the kind, size and amount of gear to be used in the harvest.
Pursuant to s. 227.4, Stats., the department finds that an emergency exists and that this rule is necessary for the preservation of the public peace, health, safety, or welfare. The welfare of state-licensed commercial fishers, Chippewa commercial fishers, anglers, and associated businesses is threatened by a decline in the lake trout population in the Wisconsin waters of Lake Superior, which is the result of harvest pressure by various user groups. The decline in lake trout population abundances requires harvest reductions by all parties in order to ensure a sustainable lake trout fishery over the long-term. Lake trout harvest limits are discussed among the Department of Natural Resources and the Red Cliff and Bad River Bands of Lake Superior Chippewa that are all parties to the 2005-2015 Lake Superior Fishing Agreement. This emergency rule is needed to preserve the public welfare and adhere to the terms of the Agreement.
Related Statutes or Rules: Section 29.973, Stats., Commercial fish reporting system.
Plain Language Analysis: The purpose of the emergency rule is to amend Lake Superior lake trout harvest limits for the 2016-17 open season and implement other reasonably related changes stemming from discussions regarding the Lake Superior Fishing Agreement. The total allowable catch of lake trout in Wisconsin waters of Lake Superior is divided among Chippewa-licensed commercial fishers, state-licensed commercial fishers, Chippewa subsistence fishers, and anglers.
This emergency rule amends the annual commercial fishing harvest limit for lake trout in the Apostle Islands region of Lake Superior and amends the bag limits and size restrictions for anglers in order to manage the total population. The rule also prohibits previously allowed commercial fishing within certain refuge areas. For anglers, the lake trout open season runs from December 1, 2016, through September 30, 2017. The commercial fishing season is open November 28, 2016, through September 30, 2017.
Sections 1 and 2 revise the minimum size limits for anglers in waters east of a line running north-south from Bark Point (46° 53.21’, -91° 11.16’) on the south shore of Lake Superior, an area also known as “WI-2.” Only 2 fish may be harvested greater than 15 inches but only one lake trout could be greater than 25 inches. No other size of lake trout may be harvested in WI‑2.
The size limits for lake trout harvested by anglers in waters west of a line running north-south from Bark Point (an area known as “WI-1”) will remain unchanged: a 15-inch minimum size limit but only 1 lake trout may be harvested over 25 inches.
In Lake Superior, the current daily bag limit for all trout species is 5 fish of which only 1 may be a rainbow trout, only 1 may be a brook trout, and only 3 may be lake trout. The 3-fish lake trout daily bag limit will remain in Wisconsin waters of Lake Superior (WI-1). However, in WI-2 the bag for lake trout would be 2 and if the harvest of lake trout by anglers in the WI-2 waters east of Bark Point during the 2016-17 fishing season reach 75% of the total allowable harvest by anglers of 9,800 fish (9,800*0.75 = 7,350) the lake trout bag limit in the WI-2 waters east of Bark Point will be reduced to 0 with no harvest or fishing for lake trout. Harvest of lake trout by anglers is measured by department creel surveys during which staff gather harvest information directly from anglers. The bag limit would change upon issuance of an order of the department secretary and publication in the official state newspaper. If that occurs, up to 3 lake trout per day may continue to be harvested in WI-1 waters west of Bark Point.
In addition, because of differences between WI-1 and WI-2, this rule language separates the lake trout bag limits from the current 5-trout total daily bag limit for Lake Superior. Therefore, anglers will be able to take either 2 (WI-2) or 3 lake trout (WI-1) per day in addition to up to 5 other trout per day.
Section 3 revises the annual state-licensed and Chippewa-licensed commercial fishing harvest quota for lake trout in waters east of a line running north-south from Bark Point on the south shore of Lake Superior. To limit the number of lake trout harvested, commercial fishers are issued tags that must be attached to harvested lake trout. The tags issued to state-licensed commercial fishers for the 2016-17 season have unique serial numbers that are designated for use in either WI-1 or WI-2 waters only.
Section 4 removes the Hagen’s Beach Restricted Fishing area, which is normally closed to commercial fishing June 1 through August 31, and opens it to fishing during those months of the 2016-17 season.
Section 5 prohibits previously allowed commercial fishing within the Gull Island Refuge area. The Gull Island Refuge, wherein the lake bottom lies at a depth of 35 fathoms (210 feet) or more, or less than 7 fathoms (42 feet), or use of float nets has been open to limited commercial fishing in prior years. In order to limit the placement of fishing nets in the water and reduce potential for lake trout bycatch, it will be closed to commercial fishing in the 2016-17 season.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin’s waters of Lake Superior.
Comparison with Similar Rules in Adjacent States: Of the four adjacent states, only Minnesota and Michigan have lake trout fisheries on the Great Lakes. The commercial harvest of lake trout from Minnesota waters of Lake Superior is limited to a population assessment fishery. In Michigan waters of Lake Superior there is no state-licensed commercial fishery, but tribal harvest is guided by the same modeling approach as in Wisconsin, although harvest limits are much lower than in Wisconsin.
Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: An assessment of lake trout populations in the Apostle Islands region of Lake Superior is conducted by the Wisconsin State-Tribal Technical Committee using the latest available data and modeling. Based on those results and recommendations from the Committee, the harvest quotas associated with the Lake Superior Fishing Agreement are re-negotiated to change the allowable harvest of lake trout by various user groups and sometimes to address other issues related to shared harvest of lake trout and other species by state and Chippewa fishers.
There has been a decline in lean lake trout abundance in Lake Superior since the early 2000s. This decline has been confirmed by independent surveys conducted by the department and has been projected by models used to set safe harvest levels. Some level of decline was expected because of high harvest limits in the early 2000s, which were in response to several large year classes (numbers of fish spawned in the same year) predicted to enter the fishery. However, successive versions of a statistical catch-at-age model also suggest that previous estimates of lake trout abundance were inflated. This combination of increased harvest and re-scaled estimates of lake trout abundance caused total allowable catch recommendations to decline. While relatively stable abundances of spawning lake trout suggest that this decline is still reversible, action needs to be taken to stop the lake trout population’s decline. The decline in lake trout abundance requires harvest reductions in order to ensure a sustainable lake trout fishery over the long-term.
The department identified several biologically sound options for bag and size limit regulations that would be applicable to anglers and solicited public input on these options through an online survey open from October 25 to November 15 and held two public meetings in October 2016. Each option was presented showing its level of risk associated with meeting or exceeding the harvest quota for anglers before the season ends in September 2017. With consideration for both the needs of the fishery and public input received, the department selected the option proposed in these rules as most appropriate for the 2016-17 season. All options considered for 2016-2017 were affected by public concern and new research on hooking mortality on released lake trout suggesting post-release mortality to be as high as 38%. To account for release mortality, each option either lowered the minimum length limit to 15 inches or factored in a mortality adjustment for released fish.
This rule includes changes to administrative code that support fisheries management policies and goals. The department took steps to ensure the accuracy, integrity, objectivity and consistency of data used to prepare the proposed rule and related analysis.