The statement of scope for this rule, SS 049-15 was approved by the Governor on May 19, 2015, published in Register No. 713B on May 27, 2015, and approved by the Natural Resources Board on August 12, 2015. This rule was approved by the Governor on December 20, 2019. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to renumber NR 25.09 (5) (a) and (b); to renumber and amend NR 25.09 (5) (intro.); to amend NR 25.02 (66), 25.05 (4), 25.09 (2) (d) 2. b., and 25.09 (5) (a) and (b); and to create NR 25.02 (9m), 25.09 (2) (d) 2. d. and e., 25.09 (2m), and 25.09 (5) (bm) relating to commercial fisheries of lake whitefish in Lake Michigan and affecting small business.
FH-10-15
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted: Sections 29.014 (1), 29.041, 29.053 (2) and 29.519 (1m) (b), Stats., have been interpreted as allowing the department to regulate fishing activities in waters of the state. 2. Statutory Authority: Sections 29.014 (1), 29.041, 29.053 (2), and 29.519 (1m) (b), Wis. Stats. authorize the promulgation of this rule. All rules promulgated under this authority are subject to review under ch. 227, Stats. 3. Explanation of Agency Authority: Under s. 29.014 (1), Stats., “Rule-making for this chapter,” the department is directed 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. The department is authorized to regulate fishing on and in all interstate boundary waters and outlying waters by s. 29.041, Stats., “Department to regulate hunting and fishing in interstate waters.” Provisions of s. 29.053 (2), Stats., “Specific open and closed seasons,” provide 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. Under s. 29.519 (1m) (b), Stats., “Commercial fishing in outlying waters,” the department is granted discretion to establish commercial fish species harvest limits after giving due consideration to the recommendations made by the commercial fishing boards, and to promulgate rules relating to quota allocations. This section also specifies that the limitations on harvests must be based on the available harvestable population of fish and on the wise use and conservation of the fish, so as to prevent overexploitation. This section grants the department the authority to designate areas where commercial fishing is restricted, as well as to establish restrictions on the types and sizes of gear used in commercial fishing. Finally, this section authorizes the department to conduct inspections of buildings, boats, vehicles, storage and records associated with commercial fishing operations. 4. Related Statutes or Rules: No additional rules or statutes relate to commercial lake whitefish fisheries in Lake Michigan.
5. Plain Language Analysis:
This rule codifies gear requirements for trawls used to harvest lake whitefish commercially. Trawling for smelt is currently allowed in a portion of Management Zone 3 near Two Rivers (Figure 1). In 2015, the department authorized a cooperative study to evaluate the use of trawls for lake whitefish in the same part of Zone 3. This rule would allow commercial fishers to trawl for whitefish only in this area of Zone 3 as an alternative to using other types of gear. Under current rules, only trap nets can be used to harvest whitefish in this area. Trawling would be allowed only during part of the Lake Michigan lake whitefish season. While trawling is a more efficient method of harvest than these other types of nets, the quota system and limited number of licenses currently in place for this zone will prevent overharvest of lake whitefish. Trawling may also help reduce user conflicts between commercial fishers and sport anglers. Trawls are dragged through the water to harvest fish over a period of an hour, while nets are deployed and left to catch fish for days before being lifted to retrieve the harvest. Fewer nets left in the water as obstacles would make it easier for sport anglers to navigate and troll for sportfish in Lake Michigan.
(See PDF for image)
Figure 1: Area of Zone 3 where trawling is allowed
Although the original scope statement for this rule also allowed for the possibility of redistributing lake whitefish quotas, this is not included in the rule at this time, as public meetings and discussions are ongoing.
SECTION 1 defines “commercial fishing license” as including licenses described in ch. 29, Stats. that authorize the harvest of fish for sale, barter or trade. This definition clarifies in administrative code a statutory provision that holders of these licenses are exempt from purchasing an additional wholesale fish dealer’s license. SECTION 2 amends the definition of “trawl” with more specific language that describes bottom trawling. Bottom trawling is the type of trawling used for commercial fishing in Wisconsin.
SECTION 3 is a housekeeping change that revises the closing date of commercial ice fishing. The date of March 15 was previously established when many more commercial fishers were operating in Lake Michigan, and thus the more restrictive closing date is now obsolete for the purpose of protecting the fisheries.
SECTION 4 establishes that whitefish may be harvested by trawling subject to the trawling requirements in s. NR 25.09 (2) (d) 2. SECTION 5 describes gear use restrictions for harvesting lake whitefish by the method of trawling. These restrictions include season dates specific to trawling in Zone 3, where trawling has previously occurred, with these waters closed to trawling between September 1 and November 30. The rule also specifies standards for the dimensions of trawling gear and the maximum time allowed for each trawl drag. These restrictions will help protect lake whitefish and minimize bycatch. Finally, this section requires electronic reporting of whitefish harvested by trawling, as well as electronic reporting of incidental harvest through trawling. Electronic reporting provides quicker and more accurate data than paper-based harvest reporting.
SECTION 6 requires licensees to use an on-vessel video surveillance system to monitor whitefish trawling. This section establishes the video system requirements that would apply to all vessels engaged in trawling for whitefish. The department could request access to the video monitoring system and archival video footage at any time. Monitoring through video surveillance will be important for assessing compliance with the new rule and estimating bycatch trends.
SECTIONS 7 to 9 establish additional requirements for moving and operating whitefish trawls during the month of August if the level of bycatch of non-target fish, and whitefish returned to the water, meets or exceeds 10% of the harvest by weight, or if two or more lake sturgeon are harvested incidentally. SECTION 9 also establishes the formula for calculating the percentage of bycatch out of the total whitefish harvest by weight. While bycatch rates are typically low through the method of trawling, these additional requirements will help prevent recurring harvest of non-target species.
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:
