The statement of scope for this rule, SS 004-21 was approved by the Governor on January 4, 2021, published in Register No. 781A2 on January 11, 2021, and approved by the Natural Resources Board on February 24, 2021. This rule was approved by the Governor on November 24, 2021. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 25.06 (2) (e) 2. b., 25.09 (3) (e) 1., and 25.13 (2) (intro.) and (f) 1., and to create NR 25.06 (2) (e) 2. c., 25.09 (2) (a) 9m., and 25.13 (2) (fm) relating to Lake Michigan whitefish management and affecting small business. |
FH-10-21 (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 any bag limits and 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), Stats., grants discretion to the department to establish commercial fish species harvest limits after giving due consideration to the recommendations made by the commercial fishing boards. In order to establish harvest limits, s. 29.519 (1m) (b), Stats., grants the department the authority to promulgate rules establishing formulas for harvest allocations among licensees or for the allotment of individual licensee catch quotas. Additional authorities granted to the department through s. 29.519 (1m) (b), Stats., include the authority to designate the size, kind, and amount of gear allowed for harvesting fish, the authority to restrict the number of licenses issued, and the authority to designate areas in outlying waters as restricted to commercial fishing operations. This section also specifies that the limitations on harvests, licenses, restricted areas, and gear must be based on the available harvestable population of fish and should uphold the wise use and conservation of the fish to prevent overexploitation. Section 29.519 (5), Stats., authorizes the department to determine the methods that commercial fishers must use to submit commercial fishing records and reports. Section 29.973, Stats., directs the department to establish and implement a commercial fish reporting system. 4. Related Statutes or Rules: The department is currently pursuing a companion permanent rule, FH-02-20, to review Zone 1 quotas and regulations in addition to a comprehensive review and update of lake whitefish quotas and regulations throughout all three zones of Lake Michigan. The department previously promulgated FH-28-20 (E) / EmR 2114, which is very similar to this rule in that it establishes the same Zone 1 quota increase, whitefish reporting requirements, and requirements to mitigate bycatch issues.
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 for the effective period of the emergency rule. 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, 2022, as measured by at least 12 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. As with the first emergency rule, 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, 2022, 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 license year. Gill net effort is not limited by 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 may 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 stakeholders.
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. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
On February 8, 2021, the department held a preliminary public hearing on the Statement of Scope for FH-28-20 (E). Twenty-six members of the public (not including DNR staff) attended the virtual hearing either by computer or phone. Six people provided testimony during the hearing and 29 people submitted written comments (including those on appearance slips) by the February 8, 2021 deadline. Comments included that the rule should address user conflict between sport and commercial fishers, that netting should not be expanded in Green Bay, that bycatch in commercial operations should be addressed, that sport fishing dollars should not be used to fund commercial fishery management and monitoring, that a Zone 1 whitefish quota increase is well below the harvestable surplus and additional harvest in Zone 1 will contribute to research studies, that commercial fishers are stewards of the resource working with the DNR, Sea Grant and UW-Green Bay to collect additional data on bycatch and mortality, that sport fishing interests should be represented, that the Zone 3 whitefish quota should not be decreased and lake trout harvest should be allowed (which is beyond the scope of the rule), that electronic reporting is burdensome to some fishers that don’t have reliable access to technology, that the quotas for all zones should be adjusted together (subject of the permanent rule), that there should be licenses available for new fishers to be able to fish in Green Bay, and discussion of market availability for whitefish in light of COVID-19.
8. 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.
The use of electronic reporting for commercial fishing operations is a requirement in Ohio and Michigan. Ohio requires most commercial fishers to keep accurate daily records of catch and submit the reports monthly. Trap net licensees must submit these records electronically, including entering the estimated weight of quota species into the electronic reporting system immediately after net lifts. Trap net fishers are also required to report when they set and remove nets ½ hour prior to returning to the dock, and must electronically report the estimated weight of non-quota species before entering a different grid. Michigan requires electronic reporting for commercial fishing, when it occurs, through the Fishing Activity and Catch Tracking System, which allows users to report on smartphones.
9. 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.
