The statement of scope for this rule, SS 058-23 was approved by the Governor on August 17, 2023, published in Register No. 812A3 on August 21, 2023, and approved by the Natural Resources Board on September 27, 2023. This rule was approved by the Governor on October 31, 2024. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 20.20 (73) (n) 5., 25.06 (1) (c) 1. to 3., 25.09 (1) (b) 1.; to repeal and recreate NR 25.06 (1) (a); and to create NR 25.09 (1) (bm) 3. relating to Lake Superior cisco and lake trout regulations and affecting small business. |
FH-16-24(E)
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: The department has interpreted ss. 29.014 (1), 29.041, and 29.519 (1m) (b), Stats., as authorizing this rule. 2. Statutory Authority: The department is granted the authority for this rule under ss. 29.014 (1), 29.041, and 29.519 (1m) (b), Stats. 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 must uphold the wise use and conservation of the fish to prevent overexploitation. 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. Thus, the State of Wisconsin works in coordination with these tribes regarding the allocation and management of the Lake Superior fishery resource to ensure sustainable harvest. 4. Related Statutes or Rules: The department has also promulgated a companion emergency rule, EmR2401 (DNR number FH-11-23 (E)), which establishes a numeric quota for lake trout only. The department is also developing a related permanent rule to support the regulatory changes from this emergency rule. 5. Plain Language Analysis:
This rule updates cisco allocation and lake trout quotas and associated regulations for Lake Superior. This rule also establishes that the lake trout quota will be established using specific quantitative data. Similar to the process used for bear, elk and lake whitefish in Lake Michigan, the department's recommendations would be presented to the Natural Resources Board for approval. This change will allow lake trout quota updates to be more responsive to changes in fish populations in Lake Superior. This rule also implements gear and permit changes in line with state-Tribal discussions that have occurred as part of the Lake Superior Fishing Agreement.
SECTION 1 adjusts the recreational lake trout harvest closure trigger for Lake Superior to 75% of the recreational lake trout quota rather than a hard number. When reached, this trigger would prompt the department to close the recreational lake trout fishing season to prevent exceeding the recreational lake trout quota.
SECTION 2 establishes the model parameters for determining the department’s lake trout quota recommendations for the WI-2 (east of Bark Point) waters of Lake Superior for state fishers. The WI-1 waters will remain at a static lake trout quota. The overall lake trout harvest quota for state (commercial and recreational) and Tribal fishers will increase through this rule for the next three years, which is also reflected in the rule language. The rule would only regulate tribal harvest at times when there is no Lake Superior Fishing Agreement in effect.
SECTION 3 modifies the season dates for commercial fishers and codifies the subdivision of the allocations for cisco.
SECTION 4 establishes a minimum mesh size requirement of 4 ¼-inch stretch measure on the pot of the trap for trap nets used in Lake Superior. This will prevent the incidental catch and mortality of lake whitefish that are caught in lake trout and lake whitefish fishing operations.
SECTION 5 applies tagging requirements of mesh size, length and license to all nets used in Lake Superior, which will help the department better track commercial fishing nets.
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:
The department held a preliminary public hearing and comment period on the statement of scope, SS 058-23, on October 5, 2023. Three people attended the preliminary public hearing, and while none provided comments, two people asked questions relating to the Lake Superior fishery. The department did not receive any written comments. 8. 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.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Lake Superior offers a diverse fishery in which lake trout, cisco, and lake whitefish are the three main commercial fish species. Recreational fishers and local charter and guide businesses also value these species as game fish, and frequently target lake trout and whitefish. Because commercial, recreational, and subsistence fishers all depend on a sustainable Lake Superior fishery, harvest regulations must be
analyzed and balanced using updated biological data and public input from the different stakeholder groups.
Quotas and associated regulations for lake trout are typically updated every three years based on the most current biological data. 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 waters of WI-2 Lake Superior, while a static quota is used in WI-1. The lake trout statistical catch-at-age model incorporates data from independent fishery assessments, the sport fishery, the commercial fishery, and tribal fisheries to project population trends and predict the maximum sustainable harvest of lake trout. The model incorporates length, age, and mortality data to maintain a 42 percent 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. (Department and tribal biologists also developed a whitefish model to better assess and predict the impacts of harvest on the whitefish population.) 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.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
