5. Plain Language Analysis:
The Lake Superior Fishing Agreement is the product of negotiations between the state and the Bad River and Red Cliff Bands of the Lake Superior Chippewa tribes pertaining to fish harvest allocation and harvest management of the shared Lake Superior fishery. The agreement provides tribal, commercial and recreational harvest opportunities while protecting the Lake Superior fishery. According to the agreement, the goal of all parties is to maintain a healthy Lake Superior ecosystem that supports fish populations and fisheries and is managed through sound science. This is accomplished through regulations enacted by each party participating in the agreement.
The 2005 – 2015 Lake Superior Fishing Agreement called for the state to adopt regulations of a nature similar to those proposed in this rule. The agreement was extended for three years as the department and the two bands engaged in negotiations to update key aspects of the quotas, tag allocations, reporting requirements, restricted areas, equipment regulations, data sharing and other provisions contained in the agreement. These updates aim to maintain healthy target and non-target fish populations while serving the needs of state and tribal commercial fishers, tribal home use fishers and state recreational anglers. The new 2018 – 2028 Lake Superior Fishing Agreement will serve as the foundation for this rule.
SECTIONS 1 and 11 establish a definition for catch-per-unit-of-effort (CPE), which is an index of measurement for fish species abundance that is used determine allowable harvest for a given species, and remove duplicative language from s. NR 25.06.
SECTION 2 defines Wisconsin Statistical Districts WI-1 and WI-2, which are the two fisheries management zones in Lake Superior.
SECTION 3 outlines the periods within the open seasons for lake trout and whitefish in Lake Superior.
SECTIONS 4 and 5 restructure the paragraph that establishes a total allowable harvest limit for lake trout. While the overall quotas remain the same, these sections revise the allocation between state and tribal fishers in WI-1 and WI-2 to be more equitable within each zone.
SECTIONS 6 and 15 move restrictions on gear use and the disposition of lake trout from the quota section, s. NR 25.06, to the commercial fishing gear section, s. NR 25.09.
SECTION 7 specifies that no parts of gill nets placed for tribal home use fishing activities may extend more than 1,320 feet from the shoreline adjacent to a tribal reservation.
SECTION 8 revises regulations for tribal home use fishing nets that differentiate between commercial and home use fishing, require harvest reporting, and establish net mesh size requirements.
SECTION 9 clarifies that commercial fishers may not possess tags from any jurisdiction other than Wisconsin.
SECTION 10 requires that all unused lean lake trout tags be returned to the department following the close of the lake trout fishing season.
SECTION 12 requires removal of entrapment net material, referred to as webbing, from the water within 3 days of the close of the season instead of 14 days.
SECTION 13 describes the requirements for trap net use in WI-1, specifying that only cisco, whitefish and lake trout no larger than 25 inches may be harvested during periods 2 and 3 of the season.
SECTION 14 creates standard requirements for all fishing gear, specifying that nets must be set at least ¼ mile from one another, and all nets must begin actively fishing within 24 hours of placement.
SECTION 16 establishes standards for ice buoys which are used by state and tribal commercial fishers to mark nets set when ice is present.
SECTION 17 updates the boundary description for the Sand Cut Lake Superior restricted area, specifies that trap nets may not be used in this area, and associates the names of restricted areas with their descriptions.
SECTION 18 modifies gear regulations for the Bark Bay restricted area.
SECTION 19 modifies gear restrictions and clarifies boundary references for the Van Tassell’s Point restricted area.
SECTION 20 describes the Red Cliff, Bad River and Madeline Island shoreline areas and establishes fishing restrictions in those areas.
SECTION 21 modifies the deadline for submitting paper commercial fishing reports.
SECTION 22 updates language relating to the electronic reporting system for commercial fishing.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
No federal statutes or regulations apply. States possess inherent authority to manage the fishery and wildlife resources located within their boundaries, except insofar as preempted by federal treaties and laws, including regulations established in the Federal Register.
7. Comparison with Similar Rules in Adjacent States:
Along with Wisconsin, Michigan and Minnesota are the only adjacent states with a Lake Superior commercial fishery. In Michigan, whitefish is the focus of the commercial fishery. Minnesota regulates several commercial fisheries on Lake Superior. Both Minnesota and Michigan have established quotas, gear requirements and other restrictions for commercial fishing in Lake Superior, working in cooperation with the Chippewa tribes in those states.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The state and the Bad River and Red Cliff Bands of Lake Superior Chippewa Indians have cooperated regarding the management of the Lake Superior fishery under the Lake Superior Fishing Agreement since 1986. The department and the two bands meet periodically to negotiate quotas, tag allocations and other harvest provisions for the major fisheries. Quotas are based on tribal, commercial and recreational harvest data and population modeling. Based on the models and recommendations from the parties involved, these harvest quotas may be re-negotiated to modify the allowable harvest of lake trout, cisco and whitefish and sometimes to address other issues related to shared harvest of other species by state and Chippewa fishers.
The parties to the agreement negotiate a total allowable annual harvest of lake trout for each of the Wisconsin Statistical Districts (WI-1 and WI-2) in Lake Superior and also negotiate the allocation of the total allowable annual harvest between state and tribal fishers. The department further allots a portion of the state allowable harvest to each licensed commercial fisher in the form of an individual quota, while the remainder is earmarked for recreational fishers. Through tagging, reporting methods and various surveys, the department can monitor progress toward the harvest quotas and modify the season if necessary.
The parties also negotiate gear restrictions that protect target and non-target fish populations while providing for the needs of state and tribal commercial fishers and tribal home use fishers.
The new 2018 – 2028 Lake Superior Fishing Agreement contains several changes to allocations, gear use, restricted areas and other regulations that impact state and tribal fishers. To implement the agreement and continue to properly and fairly manage the Lake Superior fishery, rule-making is necessary.
Population monitoring is a key component of managing Lake Superior fisheries. A statistical catch-at-age-model has been developed to sustainably manage lake trout harvest in the WI-2 waters of Lake Superior. This model predicts the maximum sustainable harvest of lake trout based on recent data. The model incorporates length, age, and mortality data to maintain a 42% mortality rate on lake trout. The allowable harvest of lake trout is used to restrict footage available for gill net effort, which also regulates whitefish harvest. The footage is based on monitored catch-per-unit-effort of lake trout in three time periods. A rolling 3-year average is used for each period to determine the amount of footage that can be sustainably used while staying within the lake trout quota. The effort restriction also encourages the avoidance of lake trout which are more vulnerable than whitefish and rewards minimizing lake trout bycatch.
These rules also revise gear regulations to enhance consistency amongst the parties to the agreement and to protect target and non-target fish populations. Requiring that gill nets be placed at least ¼ mile apart establishes a known standard that helps sport fishermen understand how nets are placed and assists in avoidance when trolling. Nets set closely together or perpendicular to one another can be difficult for the average sport fisherman to navigate.
Lost nets continue to kill fish and impact fish populations through direct loss and damage to habitat. Requiring that all nets be marked visibly will emphasize the responsibility of fishermen to set and retrieve nets during appropriate weather and ice conditions and reduce the risk of lost nets.
Refuges or restricted areas are areas where commercial fishing is prohibited in general or restricted by certain methods or at certain times. Refuges and closed areas protect non-target species by protecting normal areas of congregation such as key habitats or spawning areas. Refuges provide sanctuary that can facilitate lakewide rehabilitation of key species or help promote overall ecosystem health. Most restricted areas are nearshore areas that host a diversity of fishes. Some areas are near spawning tributaries important for lake sturgeon, coastal brook trout, and other important species. Other areas occur in unique habitats that are important for warm- and cool-water fish communities. These selected areas are protected from high-efficiency gears in order to maintain the progress made in the restoration of Lake Superior fisheries. Gill nets are size-selective; however, incidental catch (bycatch) can include numerous other species important to the Lake Superior fish community and closed areas are still needed. Additionally, gill net mortality is high. For example, lake trout mortality in gill nets is 60.4% (Johnson et al. 2004). Recent estimates of delayed mortality of 41% (Ng et al. 2015) may increase the true mortality experienced by gill nets. With high mortality of fisheries exposed to gill nets, protecting areas that have a diverse fish community is imperative to maintain the fish community objectives established through various planning processes in this state and the Lake Superior Region.
Harvest reporting is critical to monitoring efforts and assuring that populations are protected from overharvest. Effective harvest reporting strategies also ensure economic stability of businesses that rely on commercial harvest.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The rule imposing harvest limits is necessary in order to ensure a sustainable fishery over the long-term that provides an economic and natural resource benefit for all affected. When the permanent rule is pursued, the department will conduct an economic impact analysis to gather comments from any individuals, businesses, local governments, or other entities that expect to be affected economically by the rule change.
The rule will impact the harvest of lake trout and whitefish by commercial, tribal and recreational anglers. The rule will alter harvest allocations for lake trout in a more equitable manner, as well as whitefish season dates and gear specifications in ways that may provide additional harvest opportunities. The proposed rule would affect small businesses that conduct commercial fishing. Any changes to reporting requirements for commercial and recreational fishing businesses as a result of these rules will be minor in nature.
This rule may affect recreational anglers, but the exact impacts are difficult to predict. Recreational anglers and charter license holders will likely be minimally affected because they utilize a diverse fishery that includes lake trout, whitefish, cisco and other salmonids such as brown trout, splake and coho salmon. Hook and line bag limits and season dates for these species will not change with the new rules, and trolling regulations will also remain the same.
10. Effect on Small Business (initial regulatory flexibility analysis):
The items proposed in this rule may result in implementation or compliance costs relating to net marking and reporting. Certain new requirements apply to the placement and marking of nets in waters of Lake Superior that aim to standardize regulations between the state and the tribes, which may require some adjustments in gear use by state commercial fishers. A minor update to electronic fish harvest reporting system rules also removes the requirement for commercial fishers to print and sign any biweekly reports that the system generates for that commercial operation. An estimate of the cost for each business is not known at this time, but the impact is expected to be minimal, if any.
When assessing the effects of the rule on state commercial fishers, the changes to harvest allocations and seasons are likely to result in minimal economic impacts. The average dockside value for all species harvested by state commercial fishers from 2015 - 2017 is approximately $1.08 million. Total allowable catch for lake trout by state commercial fishers will increase by 440 fish in WI-2 and decrease by 430 fish in WI-1, resulting in a similar annual total dockside value for future catches as under previous rules. Due to the minimal changes in total allowable catch for lean lake trout and no changes for cisco (lake herring) or whitefish, the annual dockside value for commercially harvested fish in Lake Superior is not expected to deviate significantly from the current value as a result of these rules.
The rule does not allow for the potential to establish a reduced fine for small businesses, nor does it establish “alternative enforcement mechanisms” for “minor violations” of administrative rules made by small businesses. Public utility rate payers and local governmental units will not be affected by the rule.