The statement of scope for this rule, SS 057-22 was approved by the Governor on June 30, 2022, published in Register No. 799A2 on July 11, 2022, and approved by the Natural Resources Board on September 28, 2022. This rule was approved by the Governor on insert date. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING RULES
The Wisconsin Natural Resources Board proposes an order to create NR 26.01 (41), (45), (69) (e) to (g), and 26.03 relating to fish refuge establishment. |
FH-10-22
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 23.09 (2) (c), 29.014, 29.041, and 29.053 (2), Stats., are interpreted as authorizing the department to create fish refuges in waters of the state in which fishing is not allowed. 2. Statutory Authority: Sections 23.09 (2) (c), 29.014, 29.041, and 29.053 (2), Stats., authorize this rule. 3. Explanation of Agency Authority: Section 23.09 (2) (c), Stats., provides that the department may designate fish refuges to secure the perpetuation and adequate supply of any species of fish and provide safe retreats in which fish may breed and replenish adjacent fishing waters. Section 29.014, Stats., “rule-making for this chapter,” grants the department the authority to establish and maintain open and closed seasons, bag limits, size limits and other conditions that will conserve fish populations and provide good fishing opportunities for the citizens of the state. 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:
None apply.
5. Plain Language Analysis:
Fish refuges provide protection for fish in areas where they are concentrated and vulnerable to fishing, including areas where fish congregate to spawn. Fish refuges are closed to fishing during the time that the refuge is in effect each year. This rule will create fish refuges around fish passages and spawning areas that are expected to lead to increased concentrations of fish, resulting in increased vulnerability of these fish to angler harvest. The objective of these refuges is to protect fish populations from overharvest when fish are concentrated in the area of the refuge, as well as to minimize fishing-related disturbances to spawning fish in these areas. The refuges may also protect public safety in areas where fishing near dams or related structures would present safety hazards. Fish refuges help ensure an adequate population of fish and provide a place for fish to reproduce and replenish the population in adjacent fishable waters.
SECTION 1 establishes a year-round fish refuge surrounding and including the Kletzsch Park Dam fish passage on the Milwaukee River to protect migratory fish using the fish passage. Fish passages promote the natural movement of fish, and are important for allowing species such as lake sturgeon, walleye, smallmouth bass, northern pike, and other game fish to reach their spawning habitat. This new fish passage will be completed in late November 2023, and will allow fish to move upstream around the existing dam to their spawning habitats, which will benefit populations of lake sturgeon, northern pike, smallmouth bass, suckers, and redhorse. However, this project is expected to lead to increased concentrations of fish around the fish passage, resulting in increased vulnerability of these fish to angler harvest before they can reach their spawning habitats. This fish refuge will prohibit fishing in the immediate vicinity of the Kletzsch fish passage and in the fish passage itself.
This section also creates fish refuges in spawning marshes connected to the Wolf River to protect walleye from fishing-related disturbance and fishing pressure as they move into their spawning habitat to reproduce. Because walleye only congregate for spawning during the spring, these fish refuges would just be in place during the spawning window each year, with fishing allowed in these areas at other times of the year.
SECTION 2 establishes a mechanism for implementing temporary fish refuges on a short-term basis when circumstances arise that necessitate protection of fish as soon as practicable. This process would be similar to the process for closing the fishing season under unusual circumstances (s. NR 20.33, Wis. Admin. Code) or establishing wildlife refuges on private lands (s. 29.621, Stats.), and would involve a public notice posted in the newspaper, a public meeting upon public request, and a pathway for the public to provide input on the proposed fish refuge. The temporary fish refuges would only be in effect for a limited time (up to three years), and a permanent rule process would be necessary to implement the refuges permanently. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
No federal regulations apply. States retain management authority over the fish and wildlife resources within state boundaries provided that state regulations do not conflict with regulations established in the Federal Register. None of these rule changes violate or conflict with the provisions established in the Federal Code of Regulations.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
The department was not directed to hold a preliminary public hearing and comment period on the scope statement for this rule.
8. Comparison with Similar Rules in Adjacent States:
Fisheries management rules are generally similar in the states surrounding Wisconsin. Specific regulations may differ for species among the surrounding states, but the general principles are similar. Michigan and Minnesota also utilize fish refuges or fish sanctuaries to protect fish in sensitive areas.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The Milwaukee River supports an abundant smallmouth and northern pike fishery and contains high numbers of suckers and redhorse in the system as well. Numbers of catfish and walleye are low but present. The Milwaukee River has been implementing a sturgeon rehabilitation program since 2003 and adults are beginning to return to the river in the spring. The river drains into Lake Michigan in the Milwaukee Harbor and experiences runs of stocked trout and salmon in spring and fall. Salmonids can pass over Kletzsch Park Dam with relative ease. Native species such as lake sturgeon, redhorse, suckers, smallmouth bass and northern pike are unable to surpass the dam unless extremely high flows are encountered.
A fish passage was recently constructed in 2023 as a collaborative effort between partners. Fish passage and access to spawning habitat is well documented as essential for the natural reproduction of lake sturgeon, northern pike, smallmouth bass, walleye, and many other species. It is also well documented that fish congregate in fishways and are easily accessible to anglers if they are not protected. This fish refuge will protect fish in the area encompassing the fish passage where they are more vulnerable to angler harvest, and will help achieve the goals of establishing a self-sustaining population of lake sturgeon and providing a recreational fishery for smallmouth bass and northern pike. The refuge may also protect public safety in areas where fishing near dams or related structures would present safety hazards.
The marshes adjacent to the Wolf River are very important walleye spawning habitat. Walleye migrate into these marshes to spawn in the spring before returning to the river and connected waters. The young walleye that hatch in the marshes are a main source of walleye for the popular Winnebago System walleye fishery. The department and partners also manipulate the habitat in the marshes to facilitate walleye movement between the marshes and the river. Some of these marshes are navigable throughout the year, while others flood seasonally and become navigable. Anglers fishing in the marshes during the walleye spawning period from March to early May can disturb adult walleye that are trying to spawn and can stir up the water and vegetation, reducing the survival of eggs and young walleye. In the past, the department has posted the marshes occurring on state lands as “no entry” during walleye spawning, and has arranged for agreements with area landowners to lease the marshes for the purpose of protecting spawning walleye as no entry areas. However, the “no entry” designation also prevents the public from accessing these marshes for other purposes that do not involve fishing. Therefore, designation of the walleye spawning marshes as fish refuges is the most appropriate method for protecting these sensitive areas from activities that are most likely to disturb the fish. This rule designates the marshes occurring on state lands as fish refuges.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
