5. Plain Language Analysis:
This emergency rule provides for additional harvest of lake whitefish in Zone 1 of Green Bay and implements associated regulations in Green Bay to ensure that this additional harvest is sustainable and does not threaten populations of species susceptible to becoming bycatch, such as walleye and other game fish species. The Green Bay lake whitefish population supports a commercial fishery as well as a sport fishery, which has been increasing in popularity in recent years. The components of this rule aim to provide additional commercial harvest opportunities while maintaining the quality sport fishery for whitefish and preventing detrimental impacts to populations of game fish that may be caught as bycatch in whitefish netting operations.
SECTIONS 1 and 2 allow for 207,603 additional pounds of lake whitefish to be harvested commercially in Zone 1 of Green Bay during the 2021 license year. The quotas for all three zones are described in s. NR 25.06 (2) (e) 2. a., Wis. Admin. Code., and are dependent on the total allowable catch. This emergency rule would allow for a limited-term Zone 1 quota increase, while the total allowable catch and quotas for all three zones would be adjusted in the permanent rule. SECTIONS 3 and 4 establish large mesh gill net bycatch thresholds for Green Bay to mitigate catch and mortality of sublegal whitefish and bycatch, as well as a large mesh gill net effort cap if the percent of bycatch reaches 10 percent before June 30, 2021 as measured by onboard monitoring activities. Existing rules require gill net users to move their nets if the level of bycatch reaches 10 percent of the total legal catch, which aims to address short-term bycatch issues. This rule further establishes a mechanism for identifying and addressing chronic bycatch issues, should they arise. If the level of bycatch reaches an average of 10 percent or 2 lake sturgeon in either northern or southern Green Bay by June 30, 2021 as measured by onboard monitoring activities, a large mesh gill net effort cap for whitefish fishing in Green Bay would go into effect upon order of the DNR Secretary. The cap would be 2,875,304 feet during the remainder of the license year. Gill net footage is not limited by a total footage for the large mesh gill net fishery at this time due to the currently lower Green Bay whitefish quota. Most commercial fishers in Green Bay utilize trap nets for taking whitefish; however, the Zone 1 quota increase could encourage fishers to increase their use of gill nets. Gill nets result in a higher mortality rate for fish than other types of commercial fishing gear, such as trap nets. The proposed cap on large mesh gill net footage, in the event that bycatch levels reach 10 percent, was calculated to allow for some increased gill net effort over the current 5-year average total large mesh gill net footage. This cap will allow commercial fishers to utilize large mesh gill nets to make use of the Zone 1 whitefish quota, while providing data on catch composition in large mesh gill nets. Catch composition data from large mesh gill nets is of high interest to the department and critically needed for the development of the permanent rule.
SECTIONS 5 to 7 require all commercial whitefish fishers operating in Green Bay to submit electronic fish harvest reports, including information on bycatch. Electronic reporting provides more timely and accurate data to the department, which is critical for monitoring and responding to bycatch levels in an expanded whitefish fishery. Under this rule, Green Bay whitefish commercial fishers would have two options for reporting: either by using the existing electronic reporting method after the last lift of the day, or by recording the required information on a paper form while on the water, and then submitting that information through the electronic fish harvest reporting system either upon returning to the dock or shore or by the end of the day.
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 Illinois are the only adjacent states with a Lake Michigan commercial fishery. In Michigan, lake whitefish is the focus of the commercial fishery. In addition to the large commercial gill and trap net fishery, a small trawling fishery that focuses on smelt and lake whitefish has operated in Michigan waters of Green Bay since the 1960s. Illinois has a very limited commercial fishery on Lake Michigan. Both states have established quotas, gear requirements, and other restrictions for commercial fishing in Lake Michigan.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
This rule will address quotas and other harvest management regulations for lake whitefish in Green Bay. The Lake Michigan/Green Bay lake whitefish (Coregonus clupeaformis) population is of high value to commercial fishers and is also popular among sport anglers, especially in Green Bay. Three principal whitefish “stocks” (localized groups or populations that spawn and live in certain areas) occupy the Wisconsin waters of Lake Michigan and Green Bay, including a spawning stock in the North/Moonlight Bays area off eastern Door County, a stock in Big Bay de Noc (State of Michigan waters) and a newly developed stock from the west shore tributaries of Green Bay. Three zones for commercial fishing encompass these spawning stocks. Zone 1 is located entirely in the waters of Green Bay, Zone 2 includes waters surrounding the Door County peninsula on both the Green Bay and Lake Michigan side, and Zone 3 includes Lake Michigan waters from the city of Algoma in Kewaunee County and southward.
Figure 1: Lake Michigan commercial fishing zones.
The overall lake whitefish metapopulation (all stocks) in Lake Michigan has generally been in decline for several years with fewer fish recruiting to replenish the stocks. The current lake whitefish commercial total allowable catch in Wisconsin waters of Lake Michigan is 2.88 million pounds of dressed whitefish per year, which was approved in 2010 (an increase from the prior limit). However, the total pounds of whitefish harvested has been significantly lower than this quota for many years. The trend of fewer fish recruitment is especially true in the northern end of the lake. Preliminary data from an in-progress department-coordinated whitefish tagging study indicate that the whitefish from the Big Bay de Noc and North/Moonlight Bay stocks mix and contribute to the general Wisconsin commercial fishery in Lake Michigan. These data also indicate that some fish from these stocks, especially the Big Bay de Noc stock, move south into Wisconsin waters of Green Bay. In the lower half of Green Bay proper, however, whitefish stocks have been increasing in abundance and recolonizing historic spawning grounds over the past 10-15 years. Surveys show that some Wisconsin tributaries in Green Bay are sources of lake whitefish recruitment. Whitefish from these tributaries appear to generally remain in Green Bay as adults, with minimal movement into Lake Michigan. Due to the increase in whitefish abundance in lower Green Bay, this rule would allow commercial fishers to harvest additional whitefish in Zone 1. However, sport fishers have expressed concern about user conflicts in areas popular for recreational harvest of whitefish and other game fish, as well as commercial catch of non-target game fish species. Additional provisions in this rule would help prevent and mitigate bycatch catch and mortality, while existing restricted areas where commercial fishing is limited would remain in place to help address user conflicts.
The Zone 1 quota increase of 207,603 pounds of whitefish represents a conservative portion of the total quota generated from the department’s whitefish population models for Green Bay. According to the whitefish population models, the total sustainable whitefish quota for Green Bay is 2,355,778 pounds, which would be equally split between the sport fishing community and the commercial fishing industry. Therefore, the total commercial fishing portion of that quota would be 1,176,889 pounds in whitefish management zones WM1 and WM2 (which overlay Zone 1 and part of Zone 2 in Green Bay). However, for the purposes of this emergency rule, a more conservative quota increase is proposed to be able to properly assess the impacts of increased commercial harvest on both whitefish and non-target game fish. With the quota increase, the total Zone 1 quota (existing plus new) for commercial fishers would be 569,788 pounds. The permanent rule will provide an opportunity for the department and stakeholders to evaluate the impacts of an increased Zone 1 whitefish quota, and adjust the quota if needed during permanent rule development.
This rule includes the potential for a cap on large mesh gill net usage based on bycatch levels, which seeks to minimize the risk for increases in bycatch levels as well as balance user conflicts between commercial and sport fishers with the increase in Zone 1 whitefish quota. While large mesh gill net use is on the decline as compared to the use of trap nets, the Zone 1 quota increase could encourage commercial fishers to increase their gill net usage. Gill nets are a high-efficiency gear that can result in a high level of mortality for both whitefish and non-target bycatch favored by the sport fishing community. Existing rules require gill net users to move their nets if the level of bycatch reaches 10 percent of the total legal catch, which aims to address short-term bycatch issues. This rule further establishes a mechanism for identifying and addressing chronic bycatch issues, should they arise, by providing for a cap on large mesh gill net footage if the total large mesh gill net fishery reaches the 10 percent bycatch threshold or 2 lake sturgeon by June 30, 2021 as measured by onboard monitoring activities. These rules will not impose restrictions on the existing, well-developed gill net fishery, but will be protective of both whitefish and game fish populations in the event that gill net usage dramatically increases and bycatch averages over 10% in Green Bay due to the Zone 1 quota increase. The department calculated the proposed large mesh gill net footage cap based on the five-year average total large mesh gill net footage used in Zone 1, plus an additional 50 percent to account for the Zone 1 quota increase. The department also adjusted the total large mesh gill net footage to allow day sets to count for fractions of a day in terms of the total large mesh gill net footage, since day sets are commonly set for only a few hours at a time. For example, if a commercial fisher sets 5,000 feet of net for 12 hours (many of the existing day sets are set for less time than this), it would count as 2500 feet of the total large mesh gill net cap. Assuming commercial fishers will continue to utilize trap nets on a greater scale than gill nets, this gill net footage cap is still anticipated to provide adequate gill net fishing opportunities. This large mesh gill net effort cap reflects the importance of the Green Bay fishery as a shared resource between sport and commercial fishers.
To provide a foundation for the permanent rule as well as provide a level of protection to non-target game fish populations, data on gill net use and impacts to bycatch are critical. The department is partnering with UW-Green Bay to collect data on the catch composition of non-target fish caught in large mesh gill nets (such as walleye, yellow perch, sturgeon, salmonids, and rough fish), lethal and sublethal effects on fish caught in large mesh gill nets (such as barotrauma, heat shock, and bird predation), and environmental metrics for the areas in which bycatch is caught in gill nets (such as temperature, depth, and dissolved oxygen levels). The department’s gill net monitoring strategy includes monitoring specific feet of effort in priority grids that commercial fishers already fish during times of the year when commercial fishers are already fishing, for a rate of 7 percent of the 3-year average total gill net footage.
The use of an electronic harvest reporting system was first identified as a priority in the 2000 Commercial Fisheries Task Force report, but to date, the goal to receive all commercial harvest reports electronically has not been fulfilled. The report stated: “DNR shall establish an electronic Fish Harvest Reporting System (FHRS) in order to record and report all elements of the commercial catch. This system will replace the current biweekly reporting system, reducing paperwork and improving the timeliness and accuracy of reports. It will also form the basis for a database about fish populations that will assist with efficient management of the Great Lakes resource.”
The first electronic fish harvest reporting system was codified in 2008, with a mandate that all commercial fishers report electronically by July 2010. However, this rule was not ever fully implemented, so many commercial fishers continued to report on the biweekly paper forms, and rule-making in 2016 once again formally restored the paper reporting option with electronic reporting as an elective reporting method. Some commercial fishers have expressed discomfort with using smartphones or computers, or have noted inconsistent cell phone coverage to be able to enter reports when on the boat. However, over the past decade, advancements in cell phones, cell phone coverage, and integration of phones and mobile-friendly websites have improved exponentially, making electronic reporting even faster and easier. To safeguard against connectivity issues or system outages, the department has established procedures in s. NR 25.13 (2) (c), Wis. Admin. Code for situations in which the electronic device malfunctions or the licensee cannot connect to the electronic reporting system, including notifying the department and completing a paper copy of the report for that day before submitting it electronically upon reconnecting to the system. When this rule is implemented, commercial fishers that fish for lake whitefish in Green Bay would be required to report whitefish harvest and bycatch for their fishing activities in Green Bay through the current Electronic Fish Harvest Reporting System (EFHRS), which is a reporting option that several Green Bay commercial fishers currently utilize. EFHRS is the only reporting method that can both provide timely data on commercial fish harvest and track bycatch levels on a daily basis, so its use is critical for both monitoring the whitefish fishery under this rule and catch of bycatch. The information collected from the electronic reporting system under the period of this emergency rule will also provide a foundation for the regulations contained in the permanent rule. To provide some flexibility for reporting if certain commercial fishers do not have easy access to a smartphone or computer while on the water, this rule would provide two options, including one which allows the commercial fisher to first record the information on a paper form. To further assist commercial fishers in utilizing EFHRS, the department has developed an instruction manual on using the system and will provide training sessions as well.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The rule will impact the harvest of lake whitefish by commercial fishers, and exact economic impacts are likely to vary among commercial fishers. Because of the shift in distribution and overall decline in lake whitefish populations, some members of the Lake Michigan commercial fishing community may benefit more from the increase of allowable whitefish harvest in Green Bay than others. However, the overall economic impact may be positive for the commercial industry because the rule would allow for more efficient harvest to make full use of the available lake whitefish commercial stocks. Assuming a dockside value of $2 per pound for whitefish based on average dockside values over the past five years, a whitefish quota increase in Zone 1 of 207,603 pounds could convey up to a $415,206 dockside value benefit to the commercial fishing industry, which would translate into additional income once the fish are sold at wholesale and retail prices.
Two licensees that fish for whitefish in Green Bay may or may not have an electronic device such as a computer or smartphone to report electronically, and four licensees transfer whitefish quota to other fishers, so the recipients of the quota may or may not have an electronic device. With this information, and estimating that a low-cost smartphone and basic data plan can be obtained for about $120 per year, the impact to each commercial fishing licensee and the industry overall is likely to be very minimal, about $720.
While this rule will not impose any additional regulations on sport fishers or related fishing businesses, sport fishers may be impacted by additional netting in Green Bay. Sport fishing attracts many anglers to the area each year and contributes millions to the Green Bay-area economy annually, and the ice fishery and whitefish fishery are increasing in popularity among sport fishers. Of note, sport fishers are concerned about the impacts of additional commercial fishing on non-target game fish as well as whitefish. Caps on gill net effort in the event that bycatch levels exceed safe levels will help mitigate commercial catch of game fish targeted by anglers, fishing guides and fishing charters, and requiring electronic harvest reporting for commercial fishers will allow the department to obtain expeditious access to bycatch catch data to ensure that impacts to bycatch remain minimal.
10. Effect on Small Business (initial regulatory flexibility analysis):
This rule is likely to provide an economic benefit to small commercial fishing businesses that target whitefish in Green Bay due to the quota increase in Green Bay, and, by extension, the businesses that purchase whitefish or their parts to sell to consumers. The exact amount that each commercial fisher may gain due to the increased quota is unknown. Currently, nine commercial fishing licensees actively fish for whitefish in Green Bay, and additional commercial fishers may be able to purchase quota in Green Bay to be able to fish, thereby benefitting from this increase.
However, since commercial fishers would be required to utilize the electronic fish harvest reporting system to report whitefish and bycatch catch, this rule may have a very minimal impact on some fishers. While some commercial fishers already possess a phone or computer to enter the harvest reports, others may not own such technology and would either have to purchase it or ask someone else to assist in entering the information. Two licensees that fish for whitefish in Green Bay may or may not have an electronic device such as a computer or smartphone to report electronically, and four licensees transfer whitefish quota to other fishers, so the recipients of the quota may or may not have an electronic device. Assuming $120 per year as the cost for a basic, inexpensive smartphone with a limited data plan, the estimated total cost to commercial fishers without electronic devices is $720 or less.
The rule will not directly impact sport fishing businesses, but sport fishing businesses and anglers may have a perception of increased user conflict due to additional commercial fishing effort in Green Bay. Since the Green Bay fishery is a shared fishery between sport and commercial fishers, close monitoring of the impacts of the increased Zone 1 quota through this rule will be important for ensuring that the welfare of sport fishing businesses is also protected.
The proposed rule would not contain any design or operational standards for commercial fishers.
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
P.O. Box 7921
Madison, WI 53707
Rule Text
Section 1 NR 25.06 (2) (e) 2. b. is amended to read:
25.06 (2) (e) 2. b. The total allowable commercial harvest of whitefish in Lake Michigan and Green Bay may not exceed 2,880,001 pounds in any license year except as provided in subd. 2. c.
Section 2 NR 25.06 (2) (e) 2. c. is created to read:
25.06 (2) (e) 2. c. Notwithstanding subd. 2. a. and b., an additional 207,603 pounds of lake whitefish may be taken in Zone 1 until December 31, 2021 for a total allowable harvest in Zone 1 of 569,788 pounds.
Section 3 NR 25.09 (2) (a) 9m. is created to read:
25.09 (2) (a) 9m. a. If by June 30, 2021, the total onboard monitored lifts of gill nets with a mesh size of 4 inches or larger stretch measure in either southern Green Bay or northern Green Bay catch an average of at least 2 lake sturgeon, or an average of 10 percent or more by numbers of the total incidental catch of illegal fish out of the total dressed whitefish reported harvested by number, not to exceed 2,875,304 feet in total of gill nets with a mesh size of 4 inches or larger stretch measure may be set for the 2021 license year. The change in total gill net effort under this subdivision shall become effective upon order of the secretary.
b. Once the total footage of gill nets has reached 95 percent of the total allotment, the department shall notify licensees that no additional gill net footage with a mesh size of 4 inches or larger stretch measure may be set for the remainder of the season.
c. Licensees shall remove all gill nets with a mesh size of 4 inches or larger stretch measure set in Green Bay by 11:59 p.m. of the following workday after notification from the department that gill nets with a mesh size of 4 inches or larger stretch measure may no longer be used.
d. The following formula shall be used to determine the percentage of incidental catch of illegal fish out of the reported whitefish harvest for the purposes of subd. 9m. a.: [(number of illegal fish) / ((reported dressed whitefish harvest in pounds x 1.17) / 2.3)] x 100.
Section 4 NR 25.09 (3) (e) 1. is amended to read:
25.09 (3) (e) 1. All gill nets in the water and marked with a commercial fishing license number or a fleet reporting number shall count toward the total allowable gill net effort authorized under sub. (1) (am) or the linear feet of nets authorized under sub.subs. (2) (a) 9. and 9m.
Section 5 NR 25.13 (2) (intro.) is amended to read:
25.13 (2) A person required to be licensed under s. 29.519 (1m), Stats., to conduct commercial fishing operations on Lake Michigan, Green Bay, or Lake Superior, in lieu of the requirements under sub. (1), may elect to submit a daily fishing report to the department that includes all records of pounds of fish harvest, harvest effort, and all other information called for on the report form by means of the electronic fish reporting system, except that each person required to be licensed under s. 29.519 (1m), Stats., who conducts commercial whitefish fishing operations on Green Bay shall be required to submit a daily fishing report thereof by means of the electronic fish reporting system, as described in par. (fm). All fishing activities for the day, including the estimated pounds of each fish species caught required pursuant to par. (f) and the weighed catch by species, shall be reported before 11:59 p.m. of each day during which the licensee engages in on-water fishing activity. Reports shall be submitted in the English language on electronic forms provided for this purpose by the department and include such information as may be deemed necessary by the department for management of the fishery and to prevent depletion of the fish supply. The daily report shall be submitted using an electronic communication device operated by the licensee or a licensee’s crew member. Section 6 NR 25.13 (2) (f) 1. is amended to read:
1. For Except as provided in par. (fm), for each fishing trip on Lake Michigan or Green Bay, the licensee or crew member shall carry an electronic communication device and, after completing the last net lift but before starting for shore, shall login to the electronic fish reporting system and submit the date, licensee’s name, commercial fishing license number or fleet reporting number, boat name, zone of fishing, the estimated pounds of each fish species caught by zone, and any other information requested on the electronic fish reporting system for each fishing trip.
Section 7 NR 25.13 (2) (fm) is created to read:
25.13 (2) (fm) Each person required to be licensed under s. 29.519 (1m), Stats., who conducts commercial whitefish fishing operations on Green Bay, or a member of the licensee’s crew, who is required to submit a daily fishing report by means of the electronic fish reporting system shall submit the date, licensee’s name, commercial fishing license number or fleet reporting number, boat name, zone of fishing, the estimated pounds of each commercial fish species caught by zone, weighed catch by species for commercial fish, number of incidentally caught fish, and any other information required on the report form for each whitefish fishing trip. The licensee or member of the licensee’s crew may submit the report in one of the following ways:
