The scope statement for this rule, SS 047-18 was approved by the Governor on May 2, 2018, published in Wisconsin Administrative Register 749A1 on May 7, 2018 and approved by the Natural Resources Board on May 23, 2018. The final rule was approved by the Governor on August 29, 2019.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
RENUMBERING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to renumber NR 1.02 (4) and to create NR 1.02 (4) (b), (c) and (d) and 1.985 relating to aquaculture and fish farms.
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted:
Section 23.09(2)(o), Stats. has been interpreted as authorizing the department to accept gifts of live fish or fish eggs for conservation purposes within the state. Sections 29.014 (1), 29.041 and 29.053 (2), Stats. have been interpreted as allowing the department to conserve the fish supply on waters of the state while continuing to provide good opportunities for fishing. Section 29.707, Stats. has been interpreted as requiring the department to define the role of genetics in the department’s fish stocking strategy and to standardize fish donation procedures. This section has also been interpreted as authorizing the department to review rules regarding viral hemorrhagic septicemia and the classification of non-native forage fish. 2. Statutory Authority: Sections 23.09(2)(o), 29.014 (1), 29.041, 29.053 (2), and 29.707, Stats. authorize the promulgation of this rule. All rules promulgated under this authority are subject to review under ch. 227, Stats.
3. Explanation of Agency Authority:
The department is required to promulgate these rules under provisions of 2017 Act 21. In s. 29.707, Stats., the department is directed to establish rules related to the role of genetics in fish stocking policies and to standardize procedures for the donation of fish. Under s. 23.09(2)(o), Stats., the department is authorized to receive material or monetary gifts for conservation purposes. This grants the department the authority to accept donations of live fish or fish eggs. Under s. 29.014 (1), Stats. 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. Provisions of s. 29.053 (2), Stats. 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 waters or parts of waters. It also allows the department to establish a fishing season on specified waters in certain urban areas to allow fishing only by persons who are under 16 years old or who are disabled, as specified in s. 29.193 (3) (a), (b), or (c), Stats. In s. 29.707, Stats. the department is directed to create rules that define the extent to which genetics is involved in the department’s stocking strategies, and rules that standardize the department’s fish donation procedures. This section also requires the department to review its rules relating to viral hemorrhagic septicemia, assess the efficiency of the fish hatchery classification system, and assess the viability and use of bait fish and forage fish, including the classification of established non-native species. The department may promulgate new rules as necessary as a result of these reviews.
4. Related Statutes or Rules:
Section 29.705, Stats. specifies that the department may only supply fish or fish eggs to private entities that have entered into an agreement with the department, and that these fish must be stocked into publicly accessible waters of the state according to the agreement. This section further states that fish farms entering into such agreements must be registered with the Department of Agriculture, Trade and Consumer Protection.
5. Plain Language Analysis:
The department is required to promulgate these rules under provisions of 2017 Act 21. Act 21 revises the laws relating to aquaculture and fish farms in a variety of ways. It provides a pathway for private fish farms to enter into agreements with the DNR in order to stock fish into waters of the state. The Act also specifically requires the department to promulgate rules on the role of genetics in departmental fish stocking and standardization of fish donation procedures. The Act also provides that the department must review existing rules relating to viral hemorrhagic septicemia, a fatal fish disease affecting several Wisconsin waters, and promulgate new rules to update VHS policies as needed. Additionally, the Act directs the department to evaluate the use of bait and forage fish, particularly non-native species classified under ch. NR 40, Wis. Admin. Code, and allows the department to reclassify such species as necessary. Under the new laws, the department must continue to consult with interested parties including fishing groups and the aquaculture industry when creating these rules. The department has undertaken a thorough review of rules pertaining to viral hemorrhagic septicemia and the use of non-native bait and forage fish. To supplement the department’s rule-making efforts, several documents are in the final stages of development, including best management practices for transportation of baitfish and a fish donation policy document. The department has also initiated meetings with stakeholder input to review the status of non-native mosquitofish, which could be inadvertently transported among baitfish, and to potentially reclassify mosquitofish in ch. NR 40 as needed. Additionally, the department continues to work with the Department of Agriculture, Trade and Consumer Protection on their rules relating to health certificate requirements for transfer of fish between Type 3 registered fish farms and to waters without confirmed presence of viral hemorrhagic septicemia.
SECTIONS 1 and 2 define the role and extent that genetics is involved in the department’s fish stocking strategies. The department utilizes this general approach for stocking of both native species and non-native species in the aquaculture industry, such as salmon, rainbow trout and brown trout. The department’s current strategy for stocking fish considers genetic factors of both fish being stocked and of fish already present in a waterbody. This section also establishes that the department may establish collaborative relationships with other public and private entities for the purposes of aquaculture and stocking fish into Wisconsin waters.
SECTION 3 establishes the department’s policy on accepting donations of live fish or fish eggs. These rules will establish a timelier process for accepting donations of surplus fish or eggs from private aquaculturists.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
For activities involving movement of fish or eggs between the states, a violation of state law constitutes a violation of federal law under the Lacey Act. Violations would be enforceable by agents of the United States Fish & Wildlife Service.
7. Comparison with Similar Rules in Adjacent States:
Minnesota statutes allow the Department of Natural Resources to sell or barter fish fry or eggs at the cost of production and allow the department to sell fish or fish eggs from the state hatchery at fair market value to private hatcheries. In Iowa, licensed aquaculturists may only obtain fish from public waters of the state as authorized by the director of the Department of Natural Resources. Rules in Michigan and Illinois do not currently provide for the state to supply fish to private aquaculturists.