Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 694, 10/14/2013

Rule-Making Notices

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices EmR1313 EmR1313

(DNR # WM-07-13(E))

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.014, 29.041, 227.11 (2) (a), and 227.24, Stats., and interpreting ss. 29.014, 29.041, and 29.192, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 10, Wis. Adm. Code, relating to the 2013 migratory game bird seasons and waterfowl hunting zones. This emergency order took effect upon publication in the official state paper on September 6, 2013.

Hearing Information

Date:   Monday, October 28, 2013
Time:   1:00 p.m.
Location:   DNR State Office Building (GEF-2)
  Room 606
  101 S. Webster St.
  Madison, WI 53707

Appearances at Hearing

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of the Rule and Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments may be submitted until October 29, 2013. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Loomans.

Analysis Prepared by the Department

Plain language analysis

SECTION 1 of this rule order establishes the season length and bag limits for the 2013 Wisconsin migratory game bird seasons. For ducks, the state is divided into three zones, each with 60-day seasons. The proposed seasons in each zone are:

North duck zone — The season begins at 9:00 a.m. September 22 and continues through November 4, followed by a 5 day split, and reopens on November 10 and continues through November 25.

South duck zone — The season begins at 9:00 a.m. on September 29 and continues through October 7, followed by a 5-day split, and then reopens on October 13 and continues through December 2.

Mississippi River duck zone — The season begins at 9:00 a.m. on September 22 and continues through September 30, followed by a 12 day split, reopening on October 13 and continuing through December 2.

The daily bag limit is 6 ducks including no more than: 4 mallards, of which only 1 may be a hen, 1 black duck, 1 canvasback, 3 wood ducks, 4 scaup, 2 pintails and 2 redheads.

For Canada geese, the state is apportioned into 2 goose hunting zones, Horicon and Exterior, each with a 92 day season. The Mississippi River Subzone is a special goose management subzone within the Exterior Zone. Season lengths are:

Horicon zone — Two hunting periods, the first period beginning September 16 and the second on October 29.

Exterior zone in the northern duck zone — September 16 to November 4 and November 10 to December 21.

Exterior zone in the southern duck zone — September 16 to October 7 and October 13 to December 21.

Mississippi River subzone — September 22 to September 30 and October 13 to January 3.

The statewide daily bag limit for Canada geese in all zones is 2 birds per day during the open seasons within the zones.

SECTION 2 establishes that the youth waterfowl hunting season will be held on September 15 and 16.

Section 3 lifts a sunset of special migratory bird hunting regulations at the Mead and Zeloski Marsh Wildlife Management Areas.

SECTION 4 relaxes the prohibition on hunting waterfowl in open water for holders of permits for hunters with disabilities.

SECTION 5 reestablishes a duck hunting zone that consists of the Wisconsin portions of the Mississippi River west of the Burlington Northern Santa Fe Railroad tracks. This is the same zone configuration that was in place for the 2011 season and has been approved by the USFWS for a five year period.

Summary of, and comparison with, existing or proposed federal regulations

Under international treaty and Federal law, migratory game bird seasons are closed unless opened annually via the U.S. Fish and Wildlife Service (USFWS) regulations process. As part of the Federal rule process, the USFWS proposes a duck harvest-management objective that balances hunting opportunities with the desire to achieve waterfowl population goals identified in the North American Waterfowl Management Plan (NAWMP). Under this harvest-management objective, the relative importance of hunting opportunity increases as duck populations approach the goals in the NAWMP. Thus, hunting opportunity would be maximized when the population is at or above goals. Additionally, while USFWS believes that the NAWMP's population goals would tend to exert a conservative influence on overall duck harvest-management. Other factors, such as habitat, are to be considered.

Wisconsin Canada goose harvest is supported by 2 different Canada goose populations; the local giant Canada geese which are part of the Temperate Breeding Population (TBP) of the Mississippi Flyway provide about 40% of our fall harvest while the Mississippi Valley Population (MVP) that breeds in northern Ontario provide about 60% of the fall harvest. These 2 populations are managed under cooperative management plans developed by several states and provinces. The TBP population has steadily grown and management goals are to provide additional harvest opportunity and control population growth. In contrast, the MVP population has been on a slow decline so management objectives are to maintain a lower rate of harvest and have a stable or increasing population. These contrasting goals create a challenge in the development of hunting regulations. In order to improve our harvest management, the Mississippi Flyway Council tested the use of a standard season framework for 5 years while monitoring population size and harvest rates for the MVP and TBP. From 2007 to 2011, season lengths and bag limits for each MVP harvest state were unchanged. Each state retained the flexibility to schedule the timing of their Canada goose season. In addition, if the MVP spring population numbers dropped to a predetermined low level during the 5-year period, the stable season framework could be adjusted. At the winter 2012 flyway meeting, analysis of the impacts of these 5 years of stable regulation were reviewed and the results were mixed with regard to the management objectives. It was decided among the member states that a cautious and slow approach be taken toward continued liberalization of Canada goose hunting seasons.

The proposed modifications included in this rule order are consistent with these parameters and guidelines which are annually established by the USFWS in 50 CFR 20.

Comparison with rules in adjacent states

Since migratory bird species are managed under international treaty, each region of the country is organized in a specific geographic flyway which represents an individual migratory population of migratory game birds. Wisconsin, along with Minnesota, Michigan, Illinois and Iowa, are members of the Mississippi Flyway. Each year the states included in the flyways meet to discuss regulations and guidelines offered to the flyways by the USFWS. The FWS regulations and guidelines apply to all states within the Flyway and therefore the regulations in the adjoining states closely resemble the rules established in this rule order, and only differ slightly based on hunter desires, habitat and population management goals. However, these variations fall within guidelines and sideboards established by the USFWS.

Summary of factual data and analytical methodologies

For the regular duck season, a data based process called Adaptive Harvest Management is used annually by the USFWS and the Flyways to determine which of 3 framework alternatives best matches the current year's data on populations and habitat (data from the spring pond and duck survey). The option of a closed season is also possible if survey conditions indicated that this is necessary for the management of duck populations. The determination of which alternative is selected is based in part on the spring wetland conditions on the breeding grounds and the Mid-Continent Mallard population. These data come from the May Pond and Breeding Waterfowl Population Surveys conducted by the USFWS and Canadian Wildlife Service on traditional survey areas as well as surveys from select states, including Wisconsin.

In 2011, the USFWS gave our state the option of reconfiguring duck hunting zones and after an 11 month public input process Wisconsin implemented changes for a 5 year period. Waterfowl hunters appear to have been supportive of the new zone configuration and this proposal contains the same zone configuration that was in effect for the 2011 season. The department's position has been that the configuration of duck zones is an issue of hunter opportunity and satisfaction which does not have significant impact on duck populations.

The parameters of Wisconsin's regular goose seasons are guided by the Mississippi Flyway management plans for the MVP and TBP Canada goose populations and approved by the Mississippi Flyway Council and the USFWS. The health of these populations was measured with spring breeding population surveys, survival data and harvest rates obtained from banding and production studies. The surveys and studies are conducted annually and are supported by the State of Wisconsin as part of the MFC. The result of this work is reviewed annually by the MFC committee and the USFWS to measure the impact of the stable season framework trial period.

The primary elements of Wisconsin's waterfowl regulatory process include conducting spring waterfowl surveys, participation in MFC meetings, commenting on federal proposals, and soliciting input from the public. The state process begins with Flyway meetings in February and March each year where staff provide input to the development of federal framework alternatives and requests related to the early seasons. In spring and summer, breeding waterfowl surveys and banding are conducted in support of the regulatory process.

In early July, staff conducted a public meeting to solicit input from interest groups, including representatives of the Conservation Congress Migratory Committee. At this meeting, staff provided the attendees with breeding status information and asked for any items that they wish the department to pursue at the MFC meeting in mid July. Department staff then attended the MFC Technical and Council meetings. At these meetings, staff were provided status information and the proposed framework alternative from the USFWS. Department staff worked with the other states in our Flyway to discuss and develop proposals and recommendations that were voted upon by the MFC. Proposals that passed at the MFC meeting were forwarded to the USFWS for consideration by the Service Regulations Committee (SRC) at their meeting. The USFWS announced its final waterfowl season framework recommendation at the end of July. Department staff then summarized waterfowl status and regulation information for Wisconsin citizens and presented this information to the Migratory Committee of the Conservation Congress and at a public meeting (Post-Flyway Meeting) of interest groups and individuals on July 28. Staff gathered public input and citizen suggestions at those meetings for the development of Wisconsin's waterfowl regulations, given the federal framework. Public hearings were held from July 30-August 2 around the state to solicit additional input on the proposed annual waterfowl rule.

This rule will expand opportunity for waterfowl hunters with disabilities. Open water waterfowl hunting is currently prohibited on all but a handful of lakes in WI. A hunter who is “concealed" in emergent vegetation under current rules is not considered to be in open water. The concern is that those with disabilities may physically not be able to get into a smaller John boat, skiff, or blind and that it may be difficult or impossible to place an accessible boat or blind near vegetation capable of meeting the concealment requirements. This proposal will make it possible for disabled permit holders, and their companions, to hunt from a craft such as a pontoon boat, which may be impossible to conceal in emergent vegetation.

Closing migratory bird hunting hours early on managed public hunting areas in some states has been shown to provide good hunting across an entire property rather than just near refuges, hold ducks in an area for a longer period of time, and provide better hunting opportunities throughout the season. An experimental early closure has been applied at the Mead Wildlife Area in Marathon and Wood counties and at Zeloski Marsh in Jefferson. The regulation has been in place only during the early part of the season when hunting pressure is heaviest. The regulation has sunset after a three year trial period. There continues to be support for the special regulations and reauthorization by rule is needed for them to remain in effect.

Anticipated Private Sector Costs

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no costs are associated with compliance to these rules.

Effects on Small Business

These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, and no design or operational standards are contained in the rule. Because this rule does not add any regulatory requirements for small businesses, the proposed rules will not have a significant economic impact on a substantial number of small businesses under s. 227.24 (3m), Stats.

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

The Department has made a determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code.

Agency Contact Person

Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707 or by email at [e-mail].

Revised Notice of Hearing
(Original published September 30, 2013, Register No. 693)

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices CR 13-071 CR 13-071
(There is no emergency rule number for this rule as the emergency rule has not been filed.)

(DNR # WM-11-13 and WM-24-13 (E))

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.014, 29.041, and 227.11 (2) (a), Stats., interpreting ss. 29.014, 29.041, and 29.192, Stats., the Department of Natural Resources will hold public meetings on revisions to chs. NR 1, 10, 13, and 45, Wis. Adm. Code, related to deer management, hunting, and implementation of the 2012 White-tailed Deer Trustee Report.

Hearings will be held October 22 through October 31 at each of the following locations at the following times:

October 22
Eagle River	Northland Pines HS Auditorium	1800 Pleasure Island Rd.	6 to 8 p.m.
Eau Claire	DNR Service Center Conf. Rm	1300 W. Clairemont Ave.	7 to 9 p.m.
Park Falls	Park Falls High School Auditorium	400 9th Street North	6 to 8 p.m.
Prairie du Chien	Prairie du Chien City Hall	214 East Blackhawk Ave.	7 to 9 p.m.
Richland Center	Richland County Courthouse Board Room	181 West Seminary St.	6 to 8 p.m.
Schofield	D.C. Everest Middle School Auditorium	9302 Schofield Ave.	7 to 9 p.m.
October 23
Superior	Superior Public Library	1530 Tower Ave.	6 to 8 p.m.
Black River Falls	BRF Middle School/Lunda Auditorium	1202 Pierce St.	7 to 9 p.m.
Burlington	Veterans Terrace — Stars and Stripes Room	589 Milwaukee Ave.	6 to 8 p.m.
Fitchburg	DNR Service Center—Gathering Waters CR	3911 Fish Hatchery Road	6 to 8 p.m.
Horicon	Horicon Marsh Education and Visitor Center	N7725 Hwy 28	6 to 8 p.m.
Plymouth	Plymouth High School	125 Highland Ave.	7 to 9 p.m.
Rhinelander	James Williams Middle School, Auditorium	915 Acacia Lane	6 to 8 p.m.
October 24
Green Bay	NWTC Room SC 132	2740 W. Mason St.	7 to 9 p.m.
Wautoma	Wautoma High School Cafeteria	514 S. Cambridge St.	7 to 9 p.m.
Hayward	Hayward High School, Auditorium	10320 Greenwood Ln.	6 to 8 p.m.
Portage	Law Enforcement Center	711 East Cook St.	6 to 8 p.m.
La Crosse	DNR Service Center Room B-19	3550 Mormon Coulee Rd.	7 to 9 p.m.
Mauston	Mauston High School Auditorium	800 Grayside Ave.	7 to 9 p.m.
October 29
Ashland	Northern Great Lakes Visitor Center	29270 County Hwy G	6 to 8 p.m.
Baldwin	DNR Service Center, Conference Room	890 Spruce St.	7 to 9 p.m.
Clintonville	Clintonville High School	64 West Green Tree Rd.	7 to 9 p.m.
Florence	Natural Resources Center Conference Room	55631 Forestry Dr.	7 to 9 p.m.
Grantsburg	Crex Meadows Wildlife Education and Visitors Center	102 E. Crex Avenue	7 to 9 p.m.
Janesville	DNR Service Center — Janesville	2514 Morse St.	6 to 8 p.m.
Medford	Medford High School Red - White Theater	1015 W. Broadway Ave.	6 to 8 p.m.
Pewaukee	Wildwood Lodge — Hudson Bay Room	N14 W24121 Tower Place	6 to 8 p.m.
October 30
Antigo	Antigo High School Auditorium	1900 10th Ave.	7 to 9 p.m.
Barron	Barron Cnty Government Cntr, Room 110	355 East Monroe Ave.	7 to 9 p.m.
Crivitz	Crivitz High School	400 South Ave.	7 to 9 p.m.
Dodgeville	DNR Service Center	1500 N. Johns St.	6 to 8 p.m.
Fountain City	Cochrane/Fountain City HS Auditorium	S2770 STH 35	7 to 9 p.m.
Oshkosh	Webster Stanley Middle School	915 Hazel St.	7 to 9 p.m.
October 31
Ladysmith	Ladysmith High School Auditorium	1700 E. Edgewood Ave.	6 to 8 p.m.
Darlington	Darlington Elementary School Auditorium	11630 Center Hill Rd.	6 to 8 p.m.

Appearances at Hearing

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov or by searching the keywords “administrative rules" on the department's website. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments may be submitted until October 31. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Loomans.

Analysis Prepared by the Department

Statutory authority and explanation of agency authority

Department authority to conduct a variety of habitat and wildlife management activities is established in ss. 23.09 (2) (b), (d), (h), (k), (km), and (p), Stats. These sections authorize rulemaking related to deer and deer habitat management and: plans and priorities for conservation, game refuges, cooperative forest protection, research, resources inventory, and disease control. These sections authorize many existing provisions of ch. NR 1 (Natural Resources Board Policy), 11 (closed areas), 15 (game refuges), and 45 (use of department properties), Wis. Adm. Code.

The primary authority to establish hunting regulations for deer and other species is established in s. 29.014, Stats. This section directs the department to establish and maintain open and closed seasons, bag limits, size limits, rest days, and other conditions for the taking of game that conserves the game supply and provides citizens with good hunting opportunities. This section authorizes many of the existing provisions of chs. NR 8 (license and permit procedures), 10 (game and hunting) and 19 (Miscellaneous Fur, Fish, Game and Outdoor Recreation), Wis. Adm. Code.

The wildlife damage and nuisance program and rulemaking authority are established in s. 29.889 (2) (b), Stats., which directs the department to establish rules for program eligibility and funding, methods of abating damage, forms and procedures, prorating claims, record keeping, audits, and inspections. This is the authorizing legislation for much of ch. NR 12, Wis. Adm. Code, related to wildlife damage.

Rules related to Chippewa treaty rights (ch. NR 13) are promulgated under general authority to establish hunting regulations in s. 29.014, Stats., and these rules are the department's interpretation of how laws must be interpreted or limited in order to comply with the general limitations on state regulatory authority expressed in Lac Courte Oreilles v. State of Wisconsin, 668 F. Supp. 1233 (W.D. Wis. 1987) and the specific limitations expressed in the regulatory phase of the Voigt litigation. (See e.g., Lac Courte Oreilles v. State of Wisconsin, 707 F. Supp. 1034 (W.D. Wis. 1989).

Additional specific rule-making authority was established by 2013 ACT 20, the biennial state budget. The Deer Management Assistance Program is created in s. 29.020, Stats., and the department is directed to promulgate rules and establish fees. In s. 29.040, Stats., the department is authorized to promulgate rules that implement recommendations of the 2012 deer trustee's report. Under s. 29.181 (4), Stats., the department is authorized to establish by rule the fee for a bonus deer hunting permit that is issued for use in a county or deer management area where CWD has been identified.

Statutes interpreted and explanation

Statutes interpreted or explained in this rule order include ss. 23.09 (2), 29.014, 29.020, 29.040, 29.181 (4), 29.889 (2) (b), and 227.11, Stats. In particular, s. 29.014, Stats., grants rule-making authority to the department to establish open and closed seasons for hunting and trapping and to establish other regulations. All rules promulgated under this authority are subject to review under ch. 227, Stats.

Related statute or rule

Board Order WM-24-13 (E) is the identical emergency rule companion to the permanent rule. That emergency rule shall remain in effect until June 30, 2015, or the date on which this permanent rule takes effect, whichever is sooner.

Board Order WM-01-13, the wildlife management spring hearing rule, WM-04-13, related to remedial and housekeeping updates, and WM-21-13, related to hunting and trapping in state parks, are currently being promulgated and may affect some of the same sections as this board order. Where possible, the department will choose only one board order to make needed updates. When it is necessary to modify a section that is also being modified by another board order, that will be indicated in the treatment clause.

Plain language analysis

There has been dissatisfaction with various issues related to white-tailed deer management and hunting in Wisconsin. Gubernatorial candidate Scott Walker made a promise to appoint a “Deer Trustee" to review programs. In October of 2011, Dr. James C. Kroll, officially known as Wisconsin's white-tailed deer trustee, entered into a contract with the State of Wisconsin to conduct an independent, objective, and scientifically-based review of Wisconsin's deer management practices. The White-tailed Deer Trustee's report was released to the public in July 2012.

The objective of these proposed rules is to work with sportsmen and sportswomen and other stakeholders in order to implement ideas and solutions from the Deer Trustee's report to forge a new age for deer management.

Sections 1 to 6 update Natural Resources Board policy so that the term “population objective" and “goal" are used consistently and for concise wording.

Section 7 creates introductory material that organizes the current ch. NR 10 as Subchapter 1 and prepares for the creation of another subchapter.

Sections 8, 28, and 29 establish that CWD management zones will be identified as CWD-affected areas and are based on counties and not the previous configuration of deer management units and portions of units. These sections also establish that the population density objective in CWD-affected areas or portions of counties in CWD-affected areas is to decrease the deer herd.

Section 9 creates a definition of “afield" for the purpose of establishing that a deer cannot be accompanied by someone other than the person who tagged it if the person who tagged the deer is not also present while afield, similar to current rules.

Section 10 updates cross references and makes a cross-reference to the law which establishes the archer license more general so that it will continue to be accurate if new statutes related to hunting with crossbows are enacted.

Sections 11 to 17 of this proposal establish the deer hunting season dates for gun, archery, muzzleloader, and deer hunting by youth hunters. The standard deer hunting season framework established in these sections is:

Bow & Arrow/Archery	Saturday nearest September 15 and continuing through the Sunday nearest January 6.
Youth	Two consecutive days beginning on the Saturday nearest October 8.
October antlerless-only firearm (occurs only in those units where CWD or other disease has been found, and only after promulgation of emergency rules pursuant to s. 29.016 (2), Stats.)	Four consecutive days beginning on a Thursday and ending on the Saturday nearest, but not later than October 15th.
Traditional firearm deer season	Saturday before Thanksgiving Day Holiday and continuing for 9 days.
Muzzleloader only	Beginning on the day after the traditional November firearm deer season and continuing for 14 days.
Holiday firearm deer season (South of State HWY 64)	Beginning on December 24 and continuing through the Sunday nearest January 6.

Noteworthy changes to current rule are that there is no longer a 4-day December antlerless-only, any-firearm-type deer season. These 4 days are instead added to the muzzleloader only season, extending that season from 10 to 14 days. This section establishes that a season commonly referred to as the December holiday hunt, beginning on December 24 and continuing through the Sunday nearest January 6, is an either sex season south of State Highway 64 rather than open only in the CWD management zone. For consistency with statewide firearm hunting regulations, these sections repeal the extended firearm deer season that had been established for Metropolitan deer hunting units. Metropolitan units would continue to have a longer archer season which continues through the end of January. This section eliminates references to state park hunting seasons which are no longer needed because state statute has established that deer hunting is generally allowed in state parks. This section retains language which establishes the seasons for certain state parks when it is still needed because the existing seasons are different than the general statewide seasons. Finally, this section eliminates state park deer management unit designations and limited entry state park deer hunts.

These sections establish a bag limit of one buck during firearm deer seasons and one buck during bow & arrow seasons, plus additional antlerless deer where permits are available.