This emergency rule provides for additional harvest of lake whitefish in Zone 1 of Green Bay and implements associated regulations in Green Bay to ensure that this additional harvest is sustainable and does not threaten populations of species susceptible to becoming bycatch, such as walleye and other game fish species. The Green Bay lake whitefish population supports a commercial fishery as well as a sport fishery, which has been increasing in popularity in recent years. The components of this rule aim to provide additional commercial harvest opportunities while maintaining the quality sport fishery for whitefish and preventing detrimental impacts to populations of game fish that may be caught as bycatch in whitefish netting operations.
SECTIONS 1 and 2 allow for 207,603 additional pounds of lake whitefish to be harvested commercially in Zone 1 of Green Bay for the effective period of the emergency rule. The quotas for all three zones are described in s. NR 25.06 (2) (e) 2. a., Wis. Admin. Code., and are dependent on the total allowable catch. This emergency rule would allow for a limited-term Zone 1 quota increase, while the total allowable catch and quotas for all three zones would be adjusted in the permanent rule. SECTIONS 3 and 4 establish large mesh gill net bycatch thresholds for Green Bay to mitigate catch and mortality of sublegal whitefish and bycatch, as well as a large mesh gill net effort cap if the percent of bycatch reaches 10 percent before June 30, 2022, as measured by at least 12 onboard monitoring activities. Existing rules require gill net users to move their nets if the level of bycatch reaches 10 percent of the total legal catch, which aims to address short-term bycatch issues. As with the first emergency rule, this rule further establishes a mechanism for identifying and addressing chronic bycatch issues, should they arise. If the level of bycatch reaches an average of 10 percent or 2 lake sturgeon in either northern or southern Green Bay by June 30, 2022, as measured by onboard monitoring activities, a large mesh gill net effort cap for whitefish fishing in Green Bay would go into effect upon order of the DNR Secretary. The cap would be 2,875,304 feet during the license year. Gill net effort is not limited by total footage for the large mesh gill net fishery at this time due to the currently lower Green Bay whitefish quota. Most commercial fishers in Green Bay utilize trap nets for taking whitefish; however, the Zone 1 quota increase could encourage fishers to increase their use of gill nets. Gill nets may result in a higher mortality rate for fish than other types of commercial fishing gear, such as trap nets. The proposed cap on large mesh gill net footage, in the event that bycatch levels reach 10 percent, was calculated to allow for some increased gill net effort over the current 5-year average total large mesh gill net footage. This cap will allow commercial fishers to utilize large mesh gill nets to make use of the Zone 1 whitefish quota, while providing data on catch composition in large mesh gill nets. Catch composition data from large mesh gill nets is of high interest to the department and stakeholders.
SECTIONS 5 to 7 require all commercial whitefish fishers operating in Green Bay to submit electronic fish harvest reports, including information on bycatch. Electronic reporting provides more timely and accurate data to the department, which is critical for monitoring and responding to bycatch levels in an expanded whitefish fishery. Under this rule, Green Bay whitefish commercial fishers would have two options for reporting: either by using the existing electronic reporting method after the last lift of the day, or by recording the required information on a paper form while on the water, and then submitting that information through the electronic fish harvest reporting system either upon returning to the dock or shore or by the end of the day.
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. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
On February 8, 2021, the department held a preliminary public hearing on the Statement of Scope for FH-28-20 (E). Twenty-six members of the public (not including DNR staff) attended the virtual hearing either by computer or phone. Six people provided testimony during the hearing and 29 people submitted written comments (including those on appearance slips) by the February 8, 2021 deadline. Comments included that the rule should address user conflict between sport and commercial fishers, that netting should not be expanded in Green Bay, that bycatch in commercial operations should be addressed, that sport fishing dollars should not be used to fund commercial fishery management and monitoring, that a Zone 1 whitefish quota increase is well below the harvestable surplus and additional harvest in Zone 1 will contribute to research studies, that commercial fishers are stewards of the resource working with the DNR, Sea Grant and UW-Green Bay to collect additional data on bycatch and mortality, that sport fishing interests should be represented, that the Zone 3 whitefish quota should not be decreased and lake trout harvest should be allowed (which is beyond the scope of the rule), that electronic reporting is burdensome to some fishers that don’t have reliable access to technology, that the quotas for all zones should be adjusted together (subject of the permanent rule), that there should be licenses available for new fishers to be able to fish in Green Bay, and discussion of market availability for whitefish in light of COVID-19.
8. Comparison with Similar Rules in Adjacent States:
Along with Wisconsin, Michigan and Illinois are the only adjacent states with a Lake Michigan commercial fishery. In Michigan, lake whitefish is the focus of the commercial fishery. In addition to the large commercial gill and trap net fishery, a small trawling fishery that focuses on smelt and lake whitefish has operated in Michigan waters of Green Bay since the 1960s. Illinois has a very limited commercial fishery on Lake Michigan. Both states have established quotas, gear requirements, and other restrictions for commercial fishing in Lake Michigan.
The use of electronic reporting for commercial fishing operations is a requirement in Ohio and Michigan. Ohio requires most commercial fishers to keep accurate daily records of catch and submit the reports monthly. Trap net licensees must submit these records electronically, including entering the estimated weight of quota species into the electronic reporting system immediately after net lifts. Trap net fishers are also required to report when they set and remove nets ½ hour prior to returning to the dock, and must electronically report the estimated weight of non-quota species before entering a different grid. Michigan requires electronic reporting for commercial fishing, when it occurs, through the Fishing Activity and Catch Tracking System, which allows users to report on smartphones.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
This rule will address quotas and other harvest management regulations for lake whitefish in Green Bay. The Lake Michigan/Green Bay lake whitefish (Coregonus clupeaformis) population is of high value to commercial fishers and is also popular among sport anglers, especially in Green Bay. Three principal whitefish “stocks” (localized groups or populations that spawn and live in certain areas) occupy the Wisconsin waters of Lake Michigan and Green Bay, including a spawning stock in the North/Moonlight Bays area off eastern Door County, a stock in Big Bay de Noc (State of Michigan waters) and a newly developed stock from the west shore tributaries of Green Bay. Three zones for commercial fishing encompass these spawning stocks. Zone 1 is located entirely in the waters of Green Bay, Zone 2 includes waters surrounding the Door County peninsula on both the Green Bay and Lake Michigan side, and Zone 3 includes Lake Michigan waters from the city of Algoma in Kewaunee County and southward.
Figure 1: Lake Michigan commercial fishing zones.
The overall lake whitefish metapopulation (all stocks) in Lake Michigan has generally been in decline for several years, with fewer fish recruiting to replenish the stocks. The current lake whitefish commercial total allowable catch in Wisconsin waters of Lake Michigan is 2.88 million pounds of dressed whitefish per year, which was approved in 2010 (an increase from the prior limit). However, the total pounds of whitefish harvested has been significantly lower than this quota for many years. The trend of fewer fish recruitment is especially true in the northern end of the lake. Preliminary data from an in-progress department-coordinated whitefish tagging study indicate that the whitefish from the Big Bay de Noc and North/Moonlight Bay stocks mix and contribute to the general Wisconsin commercial fishery in Lake Michigan. These data also indicate that some fish from these stocks, especially the Big Bay de Noc stock, move south into the Wisconsin waters of Green Bay. In the lower half of Green Bay proper, however, whitefish stocks have been increasing in abundance and recolonizing historic spawning grounds over the past 10-15 years. Surveys show that some Wisconsin tributaries in Green Bay are sources of lake whitefish recruitment. Whitefish from these tributaries appear to generally remain in Green Bay as adults, with minimal movement into Lake Michigan. Due to the increase in whitefish abundance in lower Green Bay, this rule would allow commercial fishers to harvest additional whitefish in Zone 1. However, sport fishers have expressed concern about user conflicts in areas popular for recreational harvest of whitefish and other game fish, as well as commercial catch of non-target game fish species. Additional provisions in this rule would help prevent and mitigate bycatch catch and mortality, while existing restricted areas where commercial fishing is limited would remain in place to help address user conflicts.
The Zone 1 quota increase of 207,603 pounds of whitefish represents a conservative portion of the total quota generated from the department’s whitefish population models for Green Bay. According to the whitefish population models, the total sustainable whitefish quota for Green Bay is 2,355,778 pounds, which would be equally split between the sport fishing community and the commercial fishing industry. Therefore, the total commercial fishing portion of that quota would be 1,176,889 pounds in whitefish management zones WM1 and WM2 (which overlay Zone 1 and part of Zone 2 in Green Bay). However, for the purposes of this emergency rule, a more conservative quota increase is proposed while the permanent rule is under development. With the quota increase, the total Zone 1 quota (existing plus poundage added through the emergency rule) for commercial fishers would be 569,788 pounds. The department and stakeholders are in the process of evaluating the impacts of an increased Zone 1 whitefish quota, and will adjust the quota if needed during permanent rule development.
This rule includes the potential for a cap on large mesh gill net usage based on bycatch levels, which seeks to minimize the risk for increases in bycatch levels as well as balance user conflicts between commercial and sport fishers with the increase in Zone 1 whitefish quota. While large mesh gill net use is on the decline as compared to the use of trap nets, the Zone 1 quota increase could encourage commercial fishers to increase their gill net usage. Gill nets are a high-efficiency gear that can result in a high level of mortality for both whitefish and non-target bycatch favored by the sport fishing community. Existing rules require gill net users to move their nets if the level of bycatch reaches 10 percent of the total legal catch, which aims to address short-term bycatch issues. This rule further establishes a mechanism for identifying and addressing chronic bycatch issues, should they arise, by providing for a cap on large mesh gill net footage if the total large mesh gill net fishery reaches the 10 percent bycatch threshold or 2 lake sturgeon by June 30, 2022, as measured by at least 12 onboard monitoring activities. These rules will not impose initial restrictions on the existing, well-developed gill net fishery, but will be protective of both whitefish and game fish populations in the event that gill net usage dramatically increases and bycatch averages over 10% in Green Bay due to the Zone 1 quota increase. The department calculated the proposed large mesh gill net footage cap based on the five-year average total large mesh gill net footage used in Zone 1, plus an additional 50 percent to account for the Zone 1 quota increase. The department also adjusted the total large mesh gill net footage to allow day sets to count for fractions of a day in terms of the total large mesh gill net footage, since day sets are commonly set for only a few hours at a time. For example, if a commercial fisher sets 5,000 feet of net for 12 hours (many of the existing day sets are set for less time than this), it would count as 2,500 feet of the total large mesh gill net cap. Assuming commercial fishers will continue to utilize trap nets on a greater scale than gill nets, this gill net footage cap, if implemented, is still anticipated to provide adequate gill net fishing opportunities. This large mesh gill net effort cap reflects the importance of the Green Bay fishery as a shared resource between sport and commercial fishers.
To provide a foundation for the permanent rule as well as provide a level of protection to non-target game fish populations, data on gill net use and impacts to bycatch are critical. The department is partnering with UW-Green Bay and commercial fishers to collect data on the catch composition of non-target fish caught in large mesh gill nets (such as walleye, yellow perch, sturgeon, salmonids, and rough fish), lethal and sublethal effects on fish caught in large mesh gill nets (such as barotrauma, heat shock, and bird predation), and environmental metrics for the areas in which bycatch is caught in gill nets (such as temperature, depth, and dissolved oxygen levels). The department’s gill net monitoring strategy includes monitoring specific feet of effort in priority grids that commercial fishers already fish during times of the year when commercial fishers are already fishing, for a rate of 7 percent of the 3-year average total gill net footage.
The use of an electronic harvest reporting system was first identified as a priority in the 2000 Commercial Fisheries Task Force report. However, to date, Green Bay whitefish commercial fishers are the only subgroup of commercial fishers consistently reporting harvests entirely electronically, as required under emergency rule FH-28-20 (E) / EmR 2114, aside from certain individual fishers that choose to do it voluntarily. The report stated: “DNR shall establish an electronic Fish Harvest Reporting System (FHRS) in order to record and report all elements of the commercial catch. This system will replace the current biweekly reporting system, reducing paperwork and improving the timeliness and accuracy of reports. It will also form the basis for a database about fish populations that will assist with efficient management of the Great Lakes resource.”
The first electronic fish harvest reporting system was codified in 2008, with a mandate that all commercial fishers report electronically by July 2010. However, this rule was not ever fully implemented, so many commercial fishers continued to report on the biweekly paper forms, and rule-making in 2016 once again formally restored the paper reporting option with electronic reporting as an elective reporting method. Some commercial fishers have expressed discomfort with using smartphones or computers, or have noted inconsistent cell phone coverage to be able to enter reports when on the boat. However, over the past decade, advancements in cell phones, cell phone coverage, and integration of phones and mobile-friendly websites have improved exponentially, making electronic reporting even faster and easier. To safeguard against connectivity issues or system outages, the department has established procedures in s. NR 25.13 (2) (c), Wis. Admin. Code for situations in which the electronic device malfunctions or the licensee cannot connect to the electronic reporting system, including notifying the department and completing a paper copy of the report for that day before submitting it electronically upon reconnecting to the system. Under this rule, commercial fishers that fish for lake whitefish in Green Bay would continue to report whitefish harvest and bycatch for their fishing activities in Green Bay through the current Electronic Fish Harvest Reporting System (EFHRS). EFHRS is the only reporting method that can both provide timely data on commercial fish harvest and track bycatch levels on a daily basis, so its use is critical for both monitoring the whitefish fishery under this rule and catch of bycatch. To provide some flexibility for reporting if certain commercial fishers do not have easy access to a smartphone or computer while on the water, this rule would provide two options, including one which allows the commercial fisher to first record the information on a paper form. To further assist commercial fishers in utilizing EFHRS, the department has developed an instruction manual on using the system and will continue to provide training sessions as well.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The rule will impact the harvest of lake whitefish by commercial fishers, and exact economic impacts are likely to vary among commercial fishers. No new economic impacts are expected beyond those resulting from the initial emergency rule implementing these rule changes. Because of the shift in distribution and an overall decline in lake whitefish populations, some members of the Lake Michigan commercial fishing community may benefit more from the increase of allowable whitefish harvest in Green Bay than others. However, the overall economic impact may be positive for the commercial industry because the rule would allow for a more efficient harvest to make full use of the available lake whitefish commercial stocks. Assuming a dockside value of $2 per pound for whitefish based on average dockside values over the past five years, a whitefish quota increase in Zone 1 of 207,603 pounds could convey up to a $415,206 dockside value benefit to the commercial fishing industry, which would translate into additional income once the fish are sold at wholesale and retail prices.
Two licensees that fish for whitefish in Green Bay may or may not have an electronic device such as a computer or smartphone to report electronically, and four licensees transfer whitefish quota to other fishers, so the recipients of the quota may or may not have an electronic device. With this information and estimating that a low-cost smartphone and basic data plan can be obtained for about $120 per year, the impact to each commercial fishing licensee and the industry overall is likely to be very minimal, about $720.
While this rule will not impose any additional regulations on sport fishers or related fishing businesses, sport fishers may be impacted by additional netting in Green Bay. Sport fishing attracts many anglers to the area each year and contributes millions to the Green Bay-area economy annually, and the ice fishery and whitefish fishery are increasing in popularity among sport fishers. Of note, sport fishers are concerned about the impacts of additional commercial fishing on non-target game fish as well as whitefish. Caps on gill net effort in the event that bycatch levels exceed safe levels will help mitigate commercial catch of game fish targeted by anglers, fishing guides, and fishing charters, and requiring electronic harvest reporting for commercial fishers will allow the department to obtain expeditious access to bycatch catch data to ensure that impacts to bycatch remain minimal.
11. Effect on Small Business (initial regulatory flexibility analysis):
This rule would not impose any different impacts beyond those resulting from the current emergency rule (FH-28-20 (E)). These rules, in combination, are likely to provide an economic benefit to small commercial fishing businesses that target whitefish in Green Bay due to the continuation of the quota increase in Green Bay, and, by extension, the businesses that purchase whitefish or their parts to sell to consumers. The exact amount that each commercial fisher may gain in the short-term and long-term due to the increased quota is unknown since the quota increase has been in place for less than one year. Currently, nine commercial fishing licensees actively fish for whitefish in Green Bay, and additional commercial fishers may be able to purchase quota in Green Bay to be able to fish, thereby benefitting from this increase.
However, since commercial fishers would be required to utilize the electronic fish harvest reporting system to report whitefish and bycatch catch, this rule may have a very minimal impact on some fishers. While some commercial fishers already possess a phone or computer to enter the harvest reports, others may not own such technology and would either have to purchase it or ask someone else to assist in entering the information. Two licensees that fish for whitefish in Green Bay may or may not have an electronic device such as a computer or smartphone to report electronically, and four licensees transfer whitefish quota to other fishers, so the recipients of the quota may or may not have an electronic device. Assuming $120 per year as the cost for a basic, inexpensive smartphone with a limited data plan, the estimated total cost to commercial fishers without electronic devices is $720 or less.
The rule will not directly impact sport fishing businesses, but sport fishing businesses and anglers may have a perception of increased user conflict due to additional commercial fishing effort in Green Bay. Since the Green Bay fishery is a shared fishery between sport and commercial fishers, close monitoring of the impacts of the increased Zone 1 quota through this rule will be important for ensuring that the welfare of sport fishing businesses is also protected.
The proposed rule would not contain any design or operational standards for commercial fishers.
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Meredith Penthorn
Department of Natural Resources
P.O. Box 7921
Madison, WI 53707
Rule Text
Section 1 NR 25.06 (2) (e) 2. b. is amended to read:
25.06 (2) (e) 2. b. The total allowable commercial harvest of whitefish in Lake Michigan and Green Bay may not exceed 2,880,001 pounds in any license year except as provided in subd. 2. c.
Section 2 NR 25.06 (2) (e) 2. c. is created to read:
25.06 (2) (e) 2. c. Notwithstanding subd. 2. a. and b., an additional 207,603 pounds of lake whitefish may be taken in Zone 1 for a total allowable harvest in Zone 1 of 569,788 pounds.
Section 3 NR 25.09 (2) (a) 9m. is created to read:
25.09 (2) (a) 9m. a. If by June 30, 2022, 12 onboard monitored lifts of gill nets with a mesh size of 4 inches or larger stretch measure in either southern Green Bay or northern Green Bay catch an average of at least 2 lake sturgeon, or an average of 10 percent or more by numbers of the total incidental catch of illegal fish out of the total dressed whitefish reported harvested by number, not to exceed 2,875,304 feet in total of gill nets with a mesh size of 4 inches or larger stretch measure may be set for the 2022 license year. The change in total gill net effort under this subdivision shall become effective upon order of the secretary.
