ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The statement of scope for this rule, SS 053-16, was approved by the Governor on June 3, 2016, published in Register No. 726A1 on June 6, 2016, and approved by the Natural Resources Board on June 22, 2016. This emergency rule was approved by the Governor on August 15, 2016. The Wisconsin Natural Resources Board proposes an order to amend NR 25.08 (intro.) and to create NR 25.06 (1) (c), 25.07 (1) (b), and 25.13 (1) (d), Wis. Adm. Code, relating to cisco (lake herring) harvest in Lake Superior and affecting small business.
FH-12-16(E)
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority:
Section 29.014 (1), Stats., directs the department 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. Section 29.041, Stats., provides that the department may regulate fishing on and in all interstate boundary waters and outlying waters. Section 29.519 (1m) (b) and (5), Stats., authorizes the department to limit the number of Great Lakes commercial fishing licenses; designate the areas in the outlying waters under the jurisdiction of this state where commercial fishing operations are restricted; establish species harvest limits; designate the kind, size, and amount of gear to be used in the harvest; and require fishing records be submitted to the department. Pursuant to s. 227.4, Stats., the department finds that an emergency exists and that this rule is necessary for the preservation of the public peace, health, safety, or welfare. In order to preserve the welfare of state-licensed commercial fishers, Chippewa tribal commercial fishers, recreational fishers, and associated businesses, as well as the welfare and sustainability of the cisco (lake herring) population in Lake Superior, the department finds that an emergency rule is necessary to implement rule changes for cisco harvest. In addition, cisco harvest limits are discussed among the Department of Natural Resources and the Red Cliff and Bad River Bands of Lake Superior Chippewa that are all parties to the Lake Superior Fishing Agreement. This emergency rule is needed to preserve the public welfare and commit to the Agreement process.
4. Related Statutes or Rules: Section 29.973, Stats., Commercial fish reporting system. A similar permanent rule, FH-13-16, will also be pursued following the emergency rule.
5. Plain Language Analysis:
Cisco are a key species in the Lake Superior ecosystem and are harvested in Wisconsin waters for commercial, recreational, and subsistence purposes by state licensees and members of the Red Cliff and Bad River Bands of Lake Superior Chippewa Indians. This rule is needed to manage the long-term sustainability of the cisco population. Currently the commercial harvest season is open year-round and there is no size limit or harvest quota in place for cisco. The recreational angling season is open year round in Lake Superior with a 10-fish daily bag limit per person and no size limit. Only a few hundred cisco are harvested by recreational anglers each year.
Maintaining a healthy cisco population is important for several reasons:
• Cisco are an important species for both recreational and commercial harvest. Cisco contribute to the local economy through the tourism and commercial fishing industries.
Cisco are an important food chain link between trophic levels. They link the lower (zooplankton) to the upper (lake trout) trophic levels. Cisco are an important forage food for lake trout, a popular species which is seeing a decline.
• A decline in cisco could have negative consequences on whitefish and other near-shore fish, because the eggs of cisco are an important part of other species’ diets.
• Cisco reproduction is variable, with populations relying on strong year classes (fish born in the same year) to sustain them. This unpredictable year to year recruitment into the population can make cisco vulnerable to overfishing.
• The linkage between Wisconsin’s waters and those of other states and jurisdictions are not totally understood. It is possible that harvest in Wisconsin waters affects populations elsewhere in Lake Superior.
Section 1 establishes that the total allowable annual harvest of cisco by state fishers in Wisconsin waters of Lake Superior will not exceed 7.5 percent of the most recent estimate of the biomass of cisco in Lake Superior. The department conducts hydroacoustics surveys to determine the biomass estimate, and harvesting up to 7.5 percent of the total cisco biomass each year is expected to be a sustainable level for the cisco population.
Section 1 also states that the total allowable state harvest in the waters of Lake Superior may not exceed 1,497,900 round weight pounds in a calendar year. State commercial fishers must limit their total targeted harvest of cisco using gill nets from October 1 through December 31 to 1,317,900 round weight pounds. Throughout the year, state licensed commercial fishers, recreational fishers, and department assessment surveys may harvest up to an additional 180,000 round weight pounds. The department shall subdivide the 180,000 pounds among the user groups.
Section 2 establishes that the total allowable annual cisco commercial harvest quota shall be split equally among each of the 10 state commercial fishing licenses in Lake Superior as individual licensee catch quotas.
Section 3 states that license holders may transfer individual licensee catch quotas for cisco to another license holder, an existing process for other commercial species.
Section 4 applies additional phone reporting requirements for harvest of cisco. From October 1 through December 31, commercial licensees who have harvested 70 percent or more of their individual licensee catch quotas for cisco must submit a daily fishing report to the department. Daily fishing reports shall be submitted by calling a phone number provided by the department.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The department is not aware of any existing or proposed federal regulation that would govern fishing in Wisconsin’s waters of Lake Superior.
7. Comparison with Similar Rules in Adjacent States:
Minnesota and Ontario establish a cisco harvest quota similar to this proposed rule. Michigan waters, under the Chippewa Ottawa Resource Authority, have a closed season and other Michigan waters have a limitation on the effort allowed, or the length of net and gear used to catch cisco.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Cisco have been harvested commercially in Wisconsin waters of Lake Superior for decades. After a population decline in the 1960’s, a commercial fishery slowly grew over the next 30 years. Average annual state-licensed and tribal commercial harvest between 2000 and 2007 was approximately 360,000 pounds of cisco. However, since 2008 the commercial harvest of cisco increased dramatically because commercial fish processors began accepting whole fish and the market demand for cisco eggs, sold as caviar in Europe, skyrocketed. Average annual combined state and tribal harvest from 2008 through 2015 was approximately 1.4 million pounds. For state-licensed commercial fishers alone, the average annual catch was 878,343 pounds of cisco.
