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 discuss quotas, tag allocations and other harvest provisions for the major fisheries, including lake trout, cisco and whitefish. Quotas and other harvest limits are based on commercial and recreational harvest data and population modeling, and are designed to ensure the sustainability of the shared Lake Superior Fishery for the benefit of all user groups.
The parties to the agreement determine a total allowable annual harvest of lake trout for each of the Wisconsin Statistical Districts (WI-1 and WI-2) in Lake Superior that takes into account established biological parameters. The total allowable annual harvest is allocated between state and tribal fishers according to an agreed-upon division. 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 establish 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. These rules implement provisions of the agreement relating to state commercial fishers and help ensure that the Lake Superior is appropriately and fairly managed.
The department has provided information and sought input on Lake Superior topics and priorities for commercial fishers and sport anglers in several ways. The department holds biannual Lake Superior public meetings to provide updates on topics related to the agreement and management of the Lake Superior fisheries. During the emergency rule process for related emergency rule FH-01-18 (E), the department contacted stakeholders directly to inform them of the contents of the rule and subsequently held a public meeting in January 2019 to provide details on the rule. Upon implementation of the emergency rule, the department held a public hearing to gather additional feedback to begin the process for this permanent rule. The Department also held a public hearing in February 2020 to gather public feedback on the second emergency rule. Department staff also attend angler group meetings. The department will also pursue enhanced surveys to monitor potential impacts of the new Lake Superior Fishing Agreement, and follow a defined process to communicate with and involve stakeholders in future Lake Superior management decisions and direction.
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. Department and tribal biologists are currently developing a whitefish model as well to better assess and predict the impacts of harvest on the whitefish population.
These rules also revise gear regulations to enhance consistency amongst state and tribal commercial fishers 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 fishers 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%.1 Recent estimates of delayed mortality of 41% may increase the true mortality experienced by gill nets.2 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.
1.
Johnson, J. E., M. P. Ebener, K. Gebhardt, and R. A. Bergstedt. 2004. Comparison of catch and lake trout bycatch in commercial trapnets and gillnets targeting lake whitefish in northern Lake Huron. Michigan Department of Natural Resources, Fisheries Research Report 2071, Ann Arbor.2.
Ng EL, Fredericks JP, Quist MC. 2015. Effects of gill-net trauma, barotrauma, and deep release on postreleasemortality of lake trout. Journal of Fish and Wildlife Management 6(2):265–277; e1944-687X. doi: 10.3996/122014-
JFWM-096
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
This rule is necessary in order to ensure a sustainable, cooperatively managed fishery over the long-term that provides an economic and natural resource benefit for all affected. 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 fishers, tribal home use fishers and recreational anglers. The rule will achieve more equitable harvest allocations for lake trout for the benefit of state commercial fishers and anglers alike, as well as whitefish season dates and gear specifications in ways that may provide additional commercial 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 economic impacts are difficult to predict. This rule does not establish regulations that directly apply to activities of sport anglers or charters that take sport anglers fishing on Lake Superior. Recreational anglers and charter license holders 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 these new rules, and trolling regulations will also remain the same. Recreational anglers and charter license holders may experience a minimal economic impact relating to user conflicts in some areas of Lake Superior. The rule modifies the boundaries of some restricted areas, previously open only to recreational fishing, to allow commercial and tribal fishing in a very small area totaling approximately 3 percent of the 300 square miles of restricted areas. Some recreational anglers are concerned that this will preclude them from fishing in the area, reduce the quality of the fishing experience and potentially lead to a loss of business for charter guides and local businesses. However, overall the department anticipates that the rule will result in continued good fishing opportunities for anglers, and comparable contributions to the economy through sport fishing activities. Observations from 2019 have not suggested any detrimental effects to the local economy as a result of the emergency rule.
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.
Several charter businesses stated that additional commercial fishing in restricted areas, as well as an October whitefish season, could exclude recreational anglers from areas that are easiest to access in small fishing vessels and reduce game fish populations. According to charter businesses, the changes to fish populations and reduction in areas open only to sport fishing would impact fishing quality and client base. In addition, local businesses and tourism organizations stated that these rules could deter recreational anglers from visiting the Lake Superior region and spending money on accommodations, food, gas and other expenses. However, data and observations from the time period since the emergency rule went into effect do not show a negative economic impact as a result of the rule.
The effect of this rule on tourism in the Lake Superior area is also likely to be minimal, since past spending patterns remained unaffected during other regulation changes. Direct visitor spending in Bayfield County increased from $46.5 million in 2016 to $53.9 million in 2018, despite early closure of the recreational lake trout fishery and removal of a summer restricted area that was previously open only to recreational fishing. Direct visitor spending in Ashland County similarly increased from $34.9 million in 2016 to $36 million in 2018, and Iron County direct visitor spending increased from $19.6 million in 2016 to $20.8 million in 2018.
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.
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Meredith Penthorn
Department of Natural Resources
101 S. Webster St., Madison, WI 53703
608-316-0080
Section 1 NR 25.01 (2m) is created to read:
NR 25.01 (2m) The following shall apply to any agreements relating to the allocation or management of Lake Superior resources which are entered into between the department and a tribe or tribes with reserved treaty rights in the Lake Superior commercial fishery:
(a)
The department shall assess implementation of any agreements and any experimental regulations established by the agreements using factors including scientific data, biological indicators, and metrics related to the health, safety, and welfare of users.(b)
In the event the department determines the sustainability of any Lake Superior resource or the health, safety and welfare of its users are or are likely to be jeopardized, the department shall take action to address the department’s concerns, including good faith negotiation or the modification or termination of any agreement, in accordance with the terms of the agreement. Note: In December 2018, the Bad River Band of Lake Superior Chippewa, the Red Cliff Band of Lake Superior Chippewa, and the Wisconsin Department of Natural Resources entered into an agreement relating to the allocation and management of Lake Superior fishing resources (“the Agreement”). The Agreement contains provisions applicable to both tribal treaty fishers and non-tribal commercial fishers in the Wisconsin waters of Lake Superior. For tribal members, the Agreement provisions are enforceable through tribal codes adopted by the Tribes. For non-tribal members, the state’s regulations have been amended to be consistent with applicable provisions in the Agreement. Biological representatives of the state and the two tribes have identified specific goals for assessing state and tribal commercial fishing seasons under the Agreement. Those specific goals are reviewed regularly and adjusted as necessary. The Agreement contains provisions for modification or, if necessary, for termination for any reason by any party. Grounds for amendment or termination include, but are not limited to, adverse conditions which, in the opinion of any party, could jeopardize the sustainability of the Lake Superior resources or the health, safety, and welfare of resource users.
Section 2 NR 25.02 (2m) is created to read:
NR 25.02 (2m) “Catch-per-unit-of-effort” means the average number of fish caught per 1,000-foot lift of gill net or per lift of trap net, and includes all dead and live fish.
Section 3 NR 25.02 (69m) is created to read:
NR 25.02 (69m) “WI-1” and “WI-2” mean Wisconsin Statistical Districts l and 2 as defined in the Lake Trout Management Plan of the Lake Superior Technical Committee of the Great Lakes Fishery Commission. The line between the districts extends due north from the northernmost tip of Bark Point at N46° 53.21’, W91° 11.16’ with WI-1 waters to the west and WI-2 waters east to the Michigan border.
Section 4 NR 25.05 (1) (a), (c) and (h) are amended to read:
NR 25.05 (1)
| Species | A Green Bay | B Lake Michigan | C Lake Superior |
(a) | Lake trout | No open season | No open season | November 28 to September 30, subject to the requirements in ss. NR 25.06 (1) (a), and 25.07 (1) (a), and 25.09 (7) and subdivided into the following periods: Period 1: November 28 to March 31 Period 2: April 1 to May 31 Period 3: June 1 to September 30 |
(c) | Whitefish | December 1 to October 31 | December 1 to October 31 | November 28 to September 30, subdivided into the following periods: Period 1: November 28 to March 31 Period 2: April 1 to May 31 Period 3: June 1 to September 30 |
(h) | Lake herringCisco | No open season | No open season | At all times January 1 to December 31 |
Section 5 NR 25.06 (title) is amended to read:
NR 25.06 Quotas and , catch fees and special regulations.
Section 6 NR 25.06 (1) (a) is repealed and recreated to read:
NR 25.06 (1) (a) Lake trout. The total allowable annual harvest of lake trout by state and tribal commercial fishers and tribal home use fishers under par. (b) during the open season in WI-1 and WI-2 shall be determined by the natural resources board based upon recommendations from the state/tribal biological committee which consists of state, tribal and national biological service representatives.
Wisconsin Statistical District | Allowable annual harvest |
WI-1 | The total allowable commercial and tribal home use harvest in WI-1 may not exceed 6,000 lake trout. |
| That number of lake trout to be harvested by non-tribal licensed commercial fishers from the waters of WI-1 may not exceed 4,000 lake trout. |
| That number of lake trout to be harvested by the Red Cliff and Bad River bands, including both commercial and tribal home use fishers, from the waters of WI-1 may not exceed 2,000 lake trout. |
WI-2 | The total allowable commercial and tribal home use harvest in the waters of WI-2 may not exceed 56,000 lake trout. |
| That number of lake trout to be harvested by non-tribal licensed commercial fishers from the waters of WI-2 may not exceed 8,500 lake trout. |
| That number of lake trout to be harvested by the Red Cliff and Bad River bands, including both commercial and tribal home use fishers, from the waters of WI-2 may not exceed 47,500 lake trout. |
Note: If the Red Cliff and Bad River bands do not reach an agreement on the method of allocating the tribal quota between them, the department may divide the quota 50% for the Bad River band and 50% for the Red Cliff band, or by any other equitable method. |
Section 7 NR 25.06 (1) (am) is created to read:
NR 25.06 (1) (am) Recall of lake trout tags. The department may recall tags furnished or authorized in accordance with sub. (3), when necessary to implement a quota reduction.
Section 8 NR 25.06 (1) (b) 2. is amended to read:
NR 25.06 (1) (b) 2. Permittees are restricted to the use of no more than 350 feet of gill net and sale of fish pursuant to these permits is prohibited. These fishing activities shall be restricted to waters adjacent to the reservations of the Bad River and Red Cliff bands, and during the closed season for lake trout no part of any net may extend beyond 1,320 feet from the shoreline of those waters.
Section 9 NR 25.06 (1) (b) 3., 4., and 5. are created to read:
