ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 25.13 (2) (d); to amend NR 25.05 (1) (a), (c), and (h), 25.06 (title), 25.06 (1) (b) 2., 25.06 (3) (g), 25.09 (1) (am) 3. b., 25.09 (1) (b) 5., 25.09 (1) (b) 9., 25.10 (1) (b) 1., 25.10 (1) (b) 3. and 4., 25.10 (1) (b) 6. and 9., 25.10 (1) (c), 25.13 (1) (a); to repeal and recreate NR 25.06 (1) (a); and to create NR 25.01 (2m), 25.02 (2m), 25.02 (69m), 25.06 (1) (am), 25.06 (1) (b) 3., 4. and 5., 25.06 (3) (h), 25.09 (1) (bm), 25.09 (1) (d), 25.09 (1) (e), 25.10 (1) (b) 2. (title), 25.10 (1) (b) 5. (title), 25.10 (1) (b) 10. and 25.10 (1) (d) relating to harvest management regulations in the Lake Superior fishery and affecting small business. |
FH-02-18
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. Section 29.519 is interpreted as allowing the department to regulate commercial fish harvest. 2. Statutory Authority: Sections 29.014 (1), 29.041, 29.053 (2), and 29.519, Wis. 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:
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. Under s. 29.519, Stats., “Commercial fishing in outlying waters,” the department is granted discretion to establish commercial fish species harvest limits after giving due consideration to the recommendations made by the commercial fishing boards, and to promulgate rules relating to quota allocations. This section also specifies that the limitations on harvests must be based on the available harvestable population of fish and on the wise use and conservation of the fish, so as to prevent overexploitation. In addition, this section grants the department the authority to designate areas where commercial fishing is restricted, as well as to establish restrictions on the types and sizes of gear used in commercial fishing. In addition, the 1972 Gurnoe Decision (State v. Gurnoe, 53 Wis. 2d 390 (1972)) established that the Lake Superior Chippewa tribes reserved the right to fish in Lake Superior as part of their treaties with the United States government. To ensure coordinated management of this shared resource, the state and Red Cliff and Bad River bands of the Lake Superior Chippewa tribes negotiate the terms of the Lake Superior Fishing Agreement approximately every 10 years. 4. Related Statutes or Rules:
The department promulgated a companion emergency rule, FH-01-18(E), to implement new regulations for the 2018-19 commercial fishing seasons.
5. Plain Language Analysis:
This permanent rule is being proposed to update commercial fishing regulations sustainably manage the Lake Superior multi-use fishery. This rule updates commercial fishing regulations for Lake Superior, including harvest allocations, reporting requirements, restricted areas, equipment regulations, data sharing and other similar provisions. These updates aim to maintain healthy target and non-target fish populations while balancing the needs of resource users, including state and tribal commercial fishers, tribal home use fishers and state recreational anglers. This rule will allow the department to allocate the total allowable harvest of lake trout in a more equitable manner for state commercial and recreational fishers. This rule will also standardize net placement, use and marking requirements between state and tribal fishers, which will enhance net visibility and safe navigation for all fishers. The rule also proposes a variety of minor changes to increase clarity and consistency of administrative code. Together, these changes will continue to provide good commercial fishing opportunities while maintaining the strong game fish fishery of Lake Superior. This rule also includes a commitment by the department to assess cooperative agreements and experimental regulations to ensure the continued sustainability of the Lake Superior resource and the health, safety and welfare of its users.
The 2018 – 2028 Lake Superior Fishing Agreement serves as the foundation for this rule. The Lake Superior Fishing Agreement reflects a commitment between the state and the Bad River and Red Cliff Bands of the Lake Superior Chippewa to cooperatively manage the shared Lake Superior fishery through agreed-upon harvest limits, allocations and other management tools. 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.
On March 18, 2019, a companion emergency rule, FH-01-18(E) went into effect to implement new fishing regulations for the 2018-19 commercial fishing season. A second emergency rule, FH-28-19 (E), went into effect on Dec. 30, 2019 to maintain regulatory consistency while allowing time for the department to finalize this permanent rule in response to feedback received from the Natural Resources Board at its meeting on December 11, 2019. Although the department initially proposed to include an experimental allowance for state commercial fishers to harvest whitefish in October in emergency rule FH-01-18 (E), this proposal was removed in response to feedback from the public and Natural Resources Board. Similarly, this permanent rule does not include an allowance for state commercial fishers to harvest whitefish in October.
SECTION 1 states that the department will assess any cooperative agreements or experimental regulations and may take action to address such agreements or regulations if the sustainability of the fishery or health, safety and welfare of Lake Superior users are at risk. A note in this section further explains that provisions in the Lake Superior Fishing Agreement allow for fishing season assessment and adjustment as well as modification or termination of the Agreement.
SECTIONS 2 and 12 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 3 defines Wisconsin Statistical Districts WI-1 and WI-2, which are the two fisheries management zones in Lake Superior.
SECTION 4 outlines the periods within the open seasons for lake trout and whitefish in Lake Superior.
SECTIONS 5 and 6 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.
SECTION 7 moves to a new paragraph the existing provision that the department may recall lake trout tags if a quota reduction is necessary.
SECTION 8 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 during the closed season for lake trout.
SECTION 9 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 10 clarifies that commercial fishers may not possess tags from any jurisdiction other than Wisconsin.
SECTION 11 requires that all unused lean lake trout tags be returned to the department following the close of the lake trout fishing season.
SECTION 13 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 14 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 15 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 moves 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 17 establishes standards for ice buoys which are used by state and tribal commercial fishers to mark nets set when ice is present.
SECTION 18 to 22 update the boundary description for the Sand Cut Lake Superior restricted area, specify that trap nets may not be used in this area, and associate the names of restricted areas with their descriptions.
SECTION 23 modifies gear regulations for the Bark Bay restricted area.
SECTION 24 modifies gear restrictions and clarifies boundary references for the Van Tassell’s Point restricted area.
SECTION 25 describes the Red Cliff, Bad River and Madeline Island shoreline areas and establishes fishing restrictions in those areas.
SECTION 26 modifies the deadline for submitting paper commercial fishing reports.
SECTION 27 removes outdated 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:
