ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The statement of scope for this rule, SS 116-14, was approved by the Governor on November 7, 2014, published in Register No. 707B on December 1, 2014, and approved by the Natural Resources Board on January 28, 2015. This rule was approved by the Governor on October 13, 2015. The Wisconsin Natural Resources Board proposes an order to amend NR 20.20 (2) (h), (3) (f), (4) (i), (7) (h), (9) (e), (16) (h), (18) (h), (19) (h), (21) (h), (26) (h), (34) (f), (35) (f), (37) (g), (43) (g), (44) (b) 3., (44) (g), (51) (h), (55) (f), (57) (i), (61) (e), (64) (h), and (66) (f), 20.36 (1), (1) (a), and (2), 23.05 (5) (h), and 23.055 (1) and (1) (a); to repeal and recreate NR 20.20 (2) (h), (3) (f), (4) (i), (7) (h), (9) (e), (16) (h), (18) (h), (19) (h), (21) (h), (26) (h), (34) (f), (35) (f), (37) (g), (38) (e), (43) (g), (44) (b) 3., (44) (g), (51) (h), (55) (f), (57) (i), (61) (e), (64) (h), (66) (f), (73) (o) 6m., and 20.36 (1), (1) (a), and (2); and to create NR 20.20 (38) (e) and (73) (o) 6m., relating to modifications in walleye harvest management in Ceded Territory waters.
FH-18-14
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 29.014 (1), 29.041, and 29.053(2), Stats., have been interpreted as giving the department the authority to make changes to fishing regulations on inland, outlying, and boundary waters of Wisconsin. 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 29.053 (2), Stats., provides that the department may establish conditions governing the taking of fish for the state as a whole, for counties or parts of counties, or for waterbodies or parts of waterbodies. 4. Related Statutes or Rules: The department is promulgating emergency (FH-17-14(E)) and permanent rules on this same subject. The department is also concurrently proposing a rule, FH-14-14, to change multiple fishing regulations statewide that does not take effect until January and April 2016. The changes in this permanent rule incorporate and supersede those in FH-14-14 because the effective dates overlap.
5. Plain Language Analysis: This rule is needed to create consistent walleye daily bag limits in the Ceded Territory of Wisconsin. Pursuant to treaties signed between the six Wisconsin bands of Lake Superior Ojibwe and the United States and affirmed by Lac Courte Oreilles v Voigt, 700 F. 2d 341 (7th Cir. 1983), the bands have the right to harvest fish from off-reservation waters using efficient methods such as spearing and netting. The current model of reducing angling bag limits in response to annual tribal declarations to ensure a sustainable walleye harvest has become increasingly unpredictable in recent fishing seasons, and angling harvest management may be better accomplished with a stable set of regulations that achieve results similar to annual bag limit adjustments. Current Methods:
Based on projected harvest goals of the Chippewa Bands on off-reservation lakes each year, daily bag limits for sport anglers (typically 5 walleye/day) are adjusted to prevent a total harvest of more than 35% of the adult walleye population. Adjustments to 3, 2, or 1 walleye/day bag limits are typically made in early spring using safe harvest levels determined by the department on individual waters within the Wisconsin Ceded Territory.
Taking into account actual Chippewa harvest of walleye, the department raises the daily bag limit as appropriate using the percent of the safe harvest level expected to be harvested through the first Sunday in March of the following year. These readjustments are typically made in late spring or early summer, after spring spearing and netting harvest has diminished.
Rule Proposal:
This rule would prevent the need to make adjustments to daily bag limits and size limits for walleye in the Wisconsin Ceded Territory. Instead, all lakes, rivers, and streams in the Ceded Territory would have a daily bag limit of 3 walleye (walleye, sauger, or hybrids) with varying size limits. The 3-fish daily bag limit and size limits would be applied to specific waters to prevent a total harvest (tribal and non-tribal) of more than 35% of the adult walleye population in those waters, which preserves a sustainable walleye fishery.
Under this rule, a “Ceded Territory walleye management zone” is being created in addition to a 3-fish daily bag limit. Walleye in most waters in the Ceded Territory would have a minimum size limit of 15 inches, except walleye between 20 and 24 inches may not be kept and only 1 walleye larger than 24 inches may be kept. Unless a different regulation was requested by the local fisheries biologist to ensure better management of the walleye population in a specific water, lakes would have size limits based on the following table:
If the current regulation is: → | Then it will become this under the rule: |
15" minimum size, 5 fish daily bag limit (general statewide walleye regulations) | 15" minimum size, 20-24” protected slot, and 1fish may be >24", 3 fish daily bag limit |
No minimum size, 5 fish daily bag limit | No minimum size, but only 1fish may be >14", 3 fish daily bag limit |
No minimum size, but only 1fish may be >14", 3 or 5 fish daily bag limit | No minimum size, but only 1fish may be >14", 3 fish daily bag limit |
No minimum size, 14-18” protected slot, and 1 fish may be >18", 3 or 5 fish daily bag limit | No minimum size, 14-18” protected slot, and 1 fish may be >18", 3 fish daily bag limit |
18" minimum size, 3 fish daily bag limit | 18" minimum size, 3 fish daily bag limit |
28" minimum size, 1 fish daily bag limit | 28" minimum size, 1 fish daily bag limit |
SECTIONS 1 through 4 make the changes noted above in the 30 counties that are completely or partially within the Ceded Territory. SECTION 6 changes the walleye bag limits to 3 fish per day on Wisconsin-Michigan boundary waters within the Ceded Territory, but retains the 15-inch minimum size limit to match the Michigan size limit. No changes are made to Wisconsin-Minnesota boundary waters. The regulation changes follow the Ceded Territory boundary line, not county boundary lines.
In addition, SECTION 3 creates a catch-and-release only walleye fishery in the Minocqua and Tomahawk chains of lakes in Oneida County. Out of mutual concern for the walleye population in these mixed-fishery chains of Ceded Territory lakes, representatives of the Lac Du Flambeau Chippewa Tribe, the Headwaters Basin Chapter of Walleyes for Tomorrow, the Department, and the Great Lakes Indian Fish and Wildlife Commission have collaboratively developed a plan for a cooperative rehabilitation project. It seeks to restore healthy, self-sustaining walleye populations with a density of at least three adult fish per acre in Minocqua and Kawaguesaga lakes, and to improve the age diversity and abundance of walleye in Tomahawk Lake. All parties mentioned have agreed to not harvest walleye in the Minocqua chain of lakes for a period of five years - until March 31, 2020 - at which point limited harvest would be permitted.
SECTIONS 5 and 7 update the language that specifies how modifications in daily bag limits or size limits may be made in response to Chippewa harvest levels in the Ceded Territory, including Wisconsin-Michigan boundary waters.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: Authority to promulgate fishing regulations is granted to states. None of the proposed changes violate or conflict with federal regulations.
7. Comparison with Similar Rules in Adjacent States: Fisheries management rules are generally similar in the states surrounding Wisconsin. Each bordering state regulates fishing by the use of seasons, bag limits, and size limits. Specific seasons and bag and size limits may differ for species among the surrounding states, but the general principles are similar. Michigan, Minnesota, Iowa, and Illinois all have statewide seasons and bag and size limits for fish species, along with special or experimental regulations on individual waters.
In Minnesota, several Bands of Lake Superior Chippewa have harvested walleye and northern pike from Mille Lacs since 2000. Annual allowable total catch quotas are calculated for the lake and apportioned between tribal members and anglers. The State of Minnesota adjusts the size of fish allowed for angler harvest annually (a “harvest slot” limit), based on walleye population size and the age composition of that population.
Off-reservation spear harvest also occurs in Michigan, and the state of Michigan and the Great Lakes Indian Fish and Wildlife Commission use the same model for calculating Safe Harvest that is used in Wisconsin. Michigan has no specific response to tribal harvest in the regulations for state anglers but may consider such adjustments in the near future.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The department currently regulates anglers’ harvest of walleye through a combination of daily bag limits, harvest-length restrictions, and season closures. The current statewide base regulation for walleye management is a 15-inch minimum size restriction in conjunction with a 5-fish daily bag limit, but numerous other regulatory combinations are used to manage angling harvest depending upon lake- or river-specific situations.
In the Ceded Territory, a “sliding bag limit system” - where daily bag limits are adjusted during the fishing season to prevent a total harvest of more than 35% of the adult walleye population - has been used since 1991 and has shown to be effective in managing walleye exploitation among all anglers. However, concerns about the system have been expressed by many anglers and business interests in northern Wisconsin, including the annual uncertainty resulting from sliding bag limits that occur between March and May, and the resulting bag limits of 1 or 2 walleye per day. Comments received by the department state that these regulations discourage anglers from fishing on affected lakes to the economic detriment of associated businesses. Public input from both anglers and business interests suggests that a stable daily bag limit of 3 walleye may be a preferable tool for walleye harvest management, even if it means more restrictive size limits would be needed to achieve the same level of angling harvest reduction.
The department investigated the potential impact of various harvest size restrictions in conjunction with a 3-walleye daily bag limit using creel survey data collected from anglers. Creel survey data allows for determination of the proportion of walleye that would be excluded from harvest if a more restrictive harvest regulation were put in place.
