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:
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-
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9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
