This statement of scope was approved by the governor on July 25, 2012.
Rule No.
Relating to
Fisheries Administrative Code Housekeeping: corrections, clarifications, and updates to outdated language regarding fishing in inland, outlying, and boundary waters.
Rule Type
Permanent.
Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
Detailed Description of the Objective of the Proposed Rule
The proposed rule would make non-substantive housekeeping changes to sections of
NR 19, 20, 21, 22, 23, 25, and 26, relating to the regulation of fishing. The goal is to ensure the rule language that governs fishing in inland, outlying, and boundary waters is accurate and properly reflects the desired management of Wisconsin waters. The rule is in response to recent legislative changes and to the interests of the public and both Law Enforcement and Fisheries Management staff. The objectives are to:
□ add language to respond to newly created statutory language,
□ remove sections of code that are outdated or have been replaced by other statute or code changes,
□ correct errors that occurred during the drafting of rules, and
□ add or repeal language to clarify intent of original rules.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The goal of fish management, as stated in s.
NR 1.01 (2), is “to provide opportunities for the optimum use and enjoyment of Wisconsin's aquatic resources, both sport and commercial. A healthy and diverse environment is essential to meet this goal and shall be promoted through management programs."
Fishing regulations in this rule, such as length and bag limits or season dates, are used as a tool to ensure good fishing exists into the future. The department has used different types of fishing regulations in order to: control angler impacts on fish populations; maintain numbers and sizes of fish in a lake or stream; provide different types of fishing experiences, such as fishing for dinner or for a trophy fish; and make access to fishing as fair as possible.
No new policy will be proposed in this housekeeping rule. It will include non-substantive changes to administrative code that support existing policies and goals, including:
□ Amending Subchapter III of NR 19, which regulates fish farms in natural waterbodies, in response to legislative changes in
2011 Wisconsin Act 207. Natural waterbody permits now do not expire unless the department makes a finding that substantial public interest exists in the waterbody and that public or private rights in the waterbody will be damaged. A natural waterbody permit will not be required for someone wishing to use a natural waterbody for a fish farm if he or she was already issued a permit for changing the course of a stream, enlarging a waterway, or constructing a dam. In addition, the department is not required to hold a hearing or provide notice that it will not hold a hearing before issuing a permit, but it must post a notice of every permit application on its website.
□ Removing all notations of a 40-inch size limit for muskellunge in ss.
NR 20.20 (1) through
(72) county regulations. A minimum size of 40 inches is now the general inland waters size limit for muskellunge and is indicated in s.
NR 20.20 (73).
□ Removing expired language for regulations on Sparkling Lake in Vilas County and Twin Valley Lake in Iowa County.
□ Clarifying in s.
NR 20.06 (1) that trolling may also be allowed as provided in s.
29.193, Stats., which authorizes approvals for disabled persons.
□ Creating no possession limit in s.
NR 20.03 (31) for food distribution services, as defined in s.
29.001 (28), Stats., that lawfully receive fish for purposes of redistribution. This clarifies in code the existing law enforcement policy on fish donations.
□ Updating Wisconsin-Michigan boundary water regulations to be consistent with Michigan regulations. Department of Natural Resources staff from both states met in 2011 and agreed to make night angling, hook size, and spearing changes for consistency and clarity within code. A prior rule that was mistakenly modified will now restore night fishing and remove a hook gap restriction on the Menominee River. Spearing for rough fish will also be closed on all WI-MI boundary waters to make regulations the same as in Michigan and to bring the rule back into compliance with how it had been enforced and understood in prior years.
□ Adding sunset language in s.
NR 20.20 (64) (c) for bass regulations on Sparkling Lake in Vilas County that was mistakenly excluded from a rule in 2008.
□ Removing perch in Vilas County from the list of detrimental fish under s.
NR 20.38. There are and never were any contracts issued for removal of perch on those waters and abundant perch are no longer considered bad for the fishery.
□ Correcting language in s.
NR 20.20 (44) for the Minocqua Chain in Oneida County. Bass season language was left out in error during rule changes in 2011.
□ Clarifying boundaries of trout regulations in s.
NR 20.20 (54) (e) for the East Fork of Raccoon Creek in Rock County.
□ Preventing currently overlapping dates of regulations for walleye, sauger, and hybrids on the Fox River downstream from the DePere Dam.
□ Providing free fishing during the third weekend in January each year when no license is required to fish, in response to legislative changes in
2011 Wisconsin Act 168.
□ Revising code to allow anyone to fish for rough fish with a crossbow under the same circumstances as with a bow and arrow and adding Asian carp to the definition of rough fish, in response to
2011 Wisconsin Act 180.
□ Making ice shelter labeling rules the same on boundary waters as on inland waters. Owners will not be required to post their names and addresses on fishing shelters that are occupied or otherwise in use.
□ Providing free fishing during the third weekend in January each year when no license is required to fish, in response to legislative changes in
2011 Wisconsin Act 168.
□ Revising code to allow anyone to fish for rough fish with a crossbow under the same circumstances as with a bow and arrow and adding Asian carp to the definition of rough fish, in response to
2011 Wisconsin Act 180.
□ Deleting references to minimum harvesting requirements for commercial fishing in the Great Lakes, in response to legislative changes in
2011 Wisconsin Act 177.
□ Removing expired language for a fish refuge on the Grand River in Green Lake County.
□ Extending an existing fish refuge on Wingra Creek in Dane County. The refuge boundaries will be extended in response to a rebuilt and extended platform next to the refuge.
Detailed Explanation of Statutory Authority for the Rule
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
29.519 (1m) (b), Stats., provides that “after giving due consideration to the recommendations made by the commercial fishing boards under sub. (7), the department may establish species harvest limits and promulgate rules to establish formulas for the allocation of the species harvest limits among commercial fishing licensees or for the allotment of individual licensee catch quotas."
Section
29.733 (2) (f) provides that the department shall promulgate rules to establish the fees, criteria and procedures to be used in issuing permits for natural waters used in fish farms.
Section
227.11 (2) (a), Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
Approximately 120 hours.
List with Description of All Entities that may be Affected by the Proposed Rule
The proposed rule will have minimal impact on members of the public. As with any change in regulations, there will be a requirement for anglers to learn the new rules. However, a majority of this rule change clarifies code to reflect existing policies for which anglers must already comply. The Fisheries Management Bureau works to notify the public of new regulations via press releases, the internet, and fishing regulations pamphlets.
Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Authority to promulgate fishing regulations is granted to states. None of the proposed changes violate or conflict with federal regulations.
Anticipated Economic Impact of Implementing the Rule
Minimal to no economic impact expected. (Level 3)
It is not expected that there will be any economic impact directly related to these rule changes on anglers. The department will conduct an economic impact analysis to determine if any individuals, businesses, local governments, or other entities expect to be adversely affected economically. The proposed rule does not impose any compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule.
The rule does not allow for the potential to establish a reduced fine for small businesses, nor does it establish “alternative enforcement mechanisms" for “minor violations" of administrative rules made by small businesses.
Contact Person
Natural Resources
Environmental Protection, Air Pollution Control,
Chs.
NR 400—
This statement of scope was approved by the governor on July 25, 2012.
Rule No.
AM-21-12
Relating to
Revisions to Chapters
NR 405 and
408 to maintain consistency with federal permit guidelines, and to Chapters
NR 400 and
410 consistent with the repeal of Chapter
NR 411 for indirect source permits.
Rule Type
Permanent.
Detailed Description of the Objective of the Proposed Rule
The objective of this rule package is to revise language in chs.
NR 405 and
408 to maintain consistency with federal requirements and definitions. Additionally, sections of chs. NR 400 and 410 need to be repealed due to the repeal of ch. NR 411.
In May 2006, the Wisconsin Department of Natural Resources (WDNR) requested approval by the U.S. Environmental Protection Agency (USEPA) of rules promulgated by Wisconsin to incorporate federal New Source Review Reform requirements as a revision to the State Implementation Plan (SIP). The USEPA approved the SIP revisions, but subsequently requested changes to language in chs.
NR 405 and
408. The changes pertain to the fuel use prohibition that is part of the definition of “major modification".
Chapter
NR 405.02 (25i) defines “Regulated NSR air contaminant" and includes an example of volatile organic compounds as a precursor for ozone. USEPA has requested inclusion of nitrogen oxides (NO
x) in the example contained in the definition for clarification purposes.
On April 27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) adopted a motion under s.
227.26 (2) (d), Wis. Stats., suspending ch.
NR 411. Subsequent passage of legislation introduced by JCRAR in support of the suspension (see
2011 Wisconsin Act 121), resulted in the repeal of ch.
NR 411. The primary purpose of ch.
NR 411 had been to control carbon monoxide emissions from indirect sources through conditions established in construction and operation permits. Therefore the WDNR proposes to repeal rules whose only purpose is in support of ch.
NR 411. Rules proposed for repeal include ss.
NR 400.02 (101) and
(106), and
410.03 (3). Sections
NR 400.02 (101) and
(106) define `modified indirect source' and `new indirect source' respectively. Section
NR 410.03 (3) establishes fees for the application and issuance of permits to construct or modify an indirect source under ch.
NR 411.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
In a letter dated June 17, 2009, the USEPA notified the WDNR that the definition of the term “major modification" in s.
NR 405.02 was inadequate because it failed to identify permits issued under federal authority. Wisconsin's Prevention of Significant Deterioration (PSD) program was approved into its SIP on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When ch.
NR 405.02 (21) (b) (5) was written, the references to federal authority were inadvertently left out. Because the federal citations were left out of the rule, USEPA identified that in a very limited situation, the current state definition would allow a source to make a change to use a different fuel or raw material without undergoing major new source permit review for the change, even though the change could be prohibited under a federal permit. The WDNR will amend this definition to ensure that it is consistent with USEPA rule and policy and recognizes all federally issued permits.
The alternative to this rule action is to keep the rules as they are which USEPA has already identified as an inconsistency with federal PSD program. However, in a Federal Register filed June 14, 2012, USEPA disapproved the portions of the infrastructure SIP pertaining to chs.
NR 405 and
408 that would be addressed with this rulemaking. In the Federal Register, USEPA stated that they are under obligation to promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the SIP within 2 years. The Federal Register states that the FIP will not be promulgated if WDNR rectifies the deficiencies within the 2 year timeframe.
The proposed clarification of NOx as a precursor to ozone is not a policy change, but a statement of fact.
Not repealing sections of chs.
NR 400 and
410 in response to the repeal of ch.
NR 411 by the legislature would potentially create confusion and perpetuate an inconsistency with WDNR rules.
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
285.11(17), Wis. Stat., requires WDNR to “Promulgate rules, consistent with the federal clean air act, that modify the meaning of the term `modification' as it relates to specified categories of stationary sources
…". The proposed rule to make the WDNR definition of “major modification" consistent with the federal definition is necessary to be consistent with the statutes and the federal clean air act.
Section
285.11 (1), Wis. Stats., establishes that the WDNR shall “Promulgate rules implementing and consistent with this chapter and s.
299.15.". Section
285.60 (11) (b), Stats., effective March 21, 2012, establishes that the WDNR may not require a permit under this chapter for an indirect source. The proposed repeal of rules whose sole purpose is to support the issuance of permits for indirect sources is therefore necessary to be consistent with the statutes and to establish consistency within the administrative code.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
Approximately 300 hours will be spent by WDNR staff.
List with Description of All Entities that may be Affected by the Proposed Rule
The WDNR believes that the number of major sources affected by the proposed rule changes to chs.
NR 405 and
408 will be small, if any. Under Wisconsin's Title V operation permit program all requirements that apply to a source are included in its operation permit. WDNR clearly recognizes that requirements contained in a federally issued major source construction permit apply to the source and are therefore included in the source's Title V operation permit issued by the WDNR, making the requirement fully enforceable under state and federal law. The WDNR is not aware of a single situation where this type of requirement existed in a federal construction permit and was not included the state Title V operation permit.
The addition of language to clarify that NOx is a precursor to ozone will have no impact on any entities.
