ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, CONSOLIDATING, RENUMBERING, AND AMENDING; AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 20.09(2) and (3), 21.03, 21.04(5), 21.05(1), 21.06(1)(d), 22.05(1), 22.06(1)(d) and 23.05(5); and to create NR 20.05 (5m), 20.15 (5) and (6), 20.20 (5)(b) 1. c. and d. and 2. b. and c., 20.20(6)(a) 1. b. and c., 20.20(11)(a) 1. b. and c., 20.20(12)(a) 1. b. and c. and 2. b. and c., 20.20(13)(b) 1. b. and c. and 2. b. and c., 20.20(17)(a) 1. b. and c., 20.20(18)(a) 1. b. and c., 20.20(22)(a) 1. b. and c. and 2. b. and c., 20.20(23)(a) 1. c. and d. and 2. b. and c., 20.20(24)(a) 1. b. and c. and 2. b. and c., 20.20(25)(a) 1. b. and c., 20.20(27)(b) 1. b. and c., 20.20(32)(a) 1. b. and c., 20.20 (33)(a) 1. b. and c., 20.20(39)(b) 1. b. and c. and 2. b. and c., 20.20(42)(a) 1. b. and c., 20.20 (47)(a) 1. b. and c., 20.20(53)(a) 1. b. and c., 20.20(56)(a) 1. b. and c. and 2. b and c., 20.20 (62)(a) 1. b. and c., 20.20 (73)(b) 1. b. and c., 2. b. and c., 3. b. and c., 4. c. and d., 5. b. and c., and 6. b. and c., 21.06(1)(f), 22.06 (1)(f), 22.11(26), 23.065 and 25.05(3)(h) relating to taking catfish and rough fish by hand or with a bow and arrow or crossbow.
FH-15-18(E)
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Sections 29.014 (1), 29.041 and 29.053 (2), Wis. Stats. have been interpreted as authorizing the department to conserve the fish supply on waters of the state while continuing to provide good opportunities for fishing. Sections 29.405 and 29.406, Wis. Stats have been interpreted as authorizing the department to create rules regulating catfish harvest by bow, crossbow or by hand. Section 29.519 is interpreted as allowing the department to regulate commercial fish harvest. 2. Statutory Authority:
3. Explanation of Agency Authority:
The department is pursuing these rules in response to the passage of 2017 Act 297, which legalized the harvest of catfish by bow and arrow, crossbow or by hand. Under s. 29.014 (1), Stats., “Rule-making for this chapter,” the department is directed 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. The department is authorized to regulate fishing on and in all interstate boundary waters and outlying waters by s. 29.041, Stats., “Department to regulate hunting and fishing in interstate waters.” Provisions of s. 29.053 (2), Stats., “Specific open and closed seasons,” provide that the department may establish conditions governing the taking of fish for the state as a whole, for counties or parts of counties, or for waterbodies or parts of waterbodies. Section 29.405, Stats., “Fishing with bow and arrow or crossbow,” describes the conditions under which taking catfish and rough fish by bow and arrow or crossbow are allowed. This section provides that the department’s authority to promulgate rules regulating bow and crossbow seasons, bag limits, length limits, zones and other limitations for catfish and rough fish is not affected. In s. 29.406, “Fishing by hand,” the department is authorized to promulgate similar rules relating to taking catfish or rough fish by hand. The department has the authority to regulate commercial harvest, including harvest limits, gear restrictions and fishing area restrictions under s. 29.519, Stats., “Commercial fishing in outlying waters.” 4. Related Statutes or Rules:
Ch. NR 26, Wis. Admin. Code, contains fish refuges within the state that are closed to all forms of fishing, including fishing for catfish and rough fish. A companion permanent rule, FH-16-18, is also in development.
5. Plain Language Analysis:
Catfish are a valued Wisconsin game fish, and closed seasons, bag limits, and size limits have been established for fishing with hook and line and bank poles to ensure sustainable use. Under 2017 Act 297, taking catfish by hand is now allowed but no seasons, size or bag limits for this method of take are yet in place. In certain situations, including spawning and overwintering seasons, catfish will be very vulnerable to harvest using these new methods without additional harvest regulations. The proposed rule creates bowfishing regulations for catfish that are similar to those currently in place for rough fish. The rule also establishes a season for fishing by hand for catfish, subject to bag limits, size limits, gear restrictions and other regulations. Prior to Act 297, Wisconsin did not have any statewide rules allowing the harvest of game fish by bow, crossbow or by hand, but rough fish could be harvested by bow and crossbow in most of the state and by hand on some waters.
This rule will apply on inland and boundary waters of the state. Where special size regulations and closed seasons or refuges exist, anglers will adhere to the regulations on those waters in addition to complying with the bag limits and equipment restrictions described in this rule.
This rule will also prohibit commercial harvest of catfish by bow, crossbow or by hand. While commercial harvest with bow or crossbow would likely be inefficient and not pursued, hand fishing for commercial purposes could quickly deplete local catfish populations during certain times of the year.
This rule will also correct inconsistencies in rough fish regulations between administrative code and the new statutes.
SECTION 1 provides that no person may take catfish with any gear other than bare hands, or with the aid of any type of breathing apparatus.
SECTION 2 adds catfish to the list of species that can be taken with a bow and arrow or crossbow.
SECTION 3 establishes bow and arrow, crossbow and hand fishing as authorized methods for harvesting catfish, and provides exceptions for waters with closed seasons and those that are designated as fish refuges under ch. NR 26, Wis. Admin. Code. SECTIONS 4 through 24 create seasons, bag limits and size limits for taking catfish with bow and arrow, crossbow or by hand on specific waters throughout the state.
SECTION 25 amends the reciprocity agreement for Wisconsin-Minnesota boundary waters to clarify that it applies to hook and line sport fishing and that alternative methods of harvest for catfish are only allowed in boundary waters within Wisconsin.
SECTION 26 establishes seasons for taking catfish by bow and arrow, crossbow or by hand on Wisconsin-Minnesota boundary waters.
SECTIONS 27 and 30 add bow and arrow, crossbow and hand fishing to the list of methods by which rough fish may be taken on the boundary waters and subsequently sold.
SECTIONS 28 and 31 provide that rough fish may be taken by hand on boundary waters within Wisconsin.
SECTIONS 29, 32 and 35 provide that catfish may be taken with a bow and arrow, crossbow or by hand on boundary waters with Minnesota, Michigan and Iowa.
SECTION 34 adds a cross-reference to SECTION 35, pertaining to harvesting catfish in Wisconsin-Michigan boundary waters.
SECTIONS 33 and 36 prohibit commercial fishing of catfish with bow, crossbow or by hand.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
No federal regulations apply. States possess inherent authority to manage the fishery and wildlife resources within their boundaries, except insofar as preempted by federal treaties and laws, including regulations established in the Federal Registrar.
7. Comparison with Similar Rules in Adjacent States:
Minnesota and Iowa allow fishing for rough fish with a bow and arrow, but do not allow fishing for catfish with a bow and arrow, crossbow or by hand. Michigan allows rough fish and catfish harvest with a bow and arrow or crossbow, but hand fishing is not legal. In Illinois, all of these methods are legal for harvesting catfish. All neighboring states establish seasons, bag limits, size limits and closed areas for regulating the harvest of game fish.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Catfish spawn using cavities in the bank or sheltered areas behind large wood or other structures. During spawning, males will guard the nest, making them susceptible to hand fishing. Catfish are also vulnerable to overharvest during the winter. They exhibit strong site fidelity with individuals returning to the same winter locations for consecutive years. Catfish will congregate in large numbers within these wintering areas and become lethargic and docile, becoming very susceptible to being taken by hand. Season limits and gear restrictions are necessary to protect wintering populations of catfish. In addition, catfish species can be vulnerable to harvest with the use of bow and arrow at night as they lie in shallow water. Through reduced bag limits, this rule will prevent overharvest of catfish with bow or crossbow or by hand.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Economic impacts are expected to be minimal. The regulations proposed in this rule are not expected to present additional costs to anglers; rather, they will provide opportunities for alternative methods of harvest for catfish and rough fish while ensuring that harvest remains sustainable. While commercial fishers will not be able to utilize the new harvest methods, this rule will have no impacts on commercial harvest.
