CR 21-103 Rule Text

The statement of scope for this rule, SS 058-21, was approved by the Governor on June 10, 2021, published in Register No. 786A3 on June 14, 2021, and approved by the Natural Resources Board on August 11, 2021. This rule was approved by the Governor on March 3, 2022.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING AND AMENDING RULES

The Wisconsin Natural Resources Board proposes an order to repeal NR 19.09 (4) (a) and (h); and to amend NR 19.09 (4) (aa), (b), (c), (d), (e), (g), (i), (j), and (k) relating to amending the list of date-regulated wild rice harvesting waters in NR 19.09(4).

WM-06-21

Analysis Prepared by the Department of Natural Resources

1. Statute Interpreted, Statutory Authority, and Explanation of Agency Authority:

Under Ch. 29.607, Stats., “the legal title to all wild rice growing in any lake of the state, whether meandered or not, is vested in the state for the purpose of regulating harvest, use, disposition and conservation of wild rice.” Under s. 29.607 (2)(a), Stats., the secretary may designate the opening date for harvesting wild rice in navigable lakes or streams by posting notice. This authorizes the department to date-regulate wild rice waters in which the waterbodies designated by rule are closed to harvest unless posted as open.

2. Related Statutes or Rules: There are no currently active related administrative rules.

3. Plain Language Analysis:

Sections 1 to 4 amend the list of date-regulated wild rice harvesting waters. Thirty-eight waters are removed from the list and four new waters are added. It also amends the spelling of two lakes in code.

4. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: States possess inherent authority to manage the wildlife resources located within their boundaries, except insofar as preempted by federal treaties and laws, including regulations established in the Federal Register. None of these rule changes violate or conflict with the provisions established in the Federal Code of Regulations.

5. If Held, Summary of Comments Received During Preliminary Comment Period

and at Public Hearing on the Statement of Scope: No preliminary public comment period was requested for this statement of scope.

6. Comparison with Similar Rules in Adjacent States:

The only other two neighboring states where northern wild rice is naturally found are Minnesota and Michigan.

Minnesota does not designate date-regulated lakes, but the open season for all waters is between August 15 – September 30. However, some Minnesota tribes regulate specific opening dates on reservation waters. Wild rice harvesting is lawful in Michigan, but no such harvest regulations exist.

Illinois and Iowa have populations of southern wild rice.  However, this species is seldom harvested.

7. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:

Since 1964, certain prominent wild rice harvesting waters have been formally regulated by a date opening through administrative rule. However, the list of date-regulated wild rice harvesting waters within the portion of Wisconsin which was ceded through the Treaties of 1836 and 1842 between the United States and Wisconsin’s Ojibwe Tribes (the Ceded Territory), found in s. NR 19.09(4), Wis. Adm. Code, has not changed since 1985. The purpose of date regulation has been to protect the most critical and popular wild rice waters from premature harvest and damage to the beds of wild rice, and to inform harvesters of when the resource is mature and ready for harvest. The opening date varies by lake depending on when it is determined that rice is ripe enough for harvest. The boat landing associated with that body of water are posted at least twenty-four hours in advance of the harvest season opening. Within the Ceded Territory, wild rice is an important resource to both the state and the Ojibwe tribes, with both members and non-members participating in harvest.

Over time, changes to long-term wild rice abundance and corresponding harvest activities have occurred on certain waters. Wild rice has been completely absent or significantly diminished on several waters that are currently date-regulated under portions of s. NR 19.09(4), Wis. Adm. Code, for several years. The result has been mutual agreement between Ojibwe tribes and department officials to completely close these waters to wild rice harvest on an annual basis. Retaining these waters as date-regulated may give some harvesters the false impression that they contain stands of rice that are large enough to make harvest a worth-while effort. By eliminating waters which no longer benefit from date-regulation from administrative code, administrative time will be saved for posting the waters and notifying the public through various communications.

8. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: These rules, and the legislation which grants the department rule-making authority, do not have fiscal effects on the private sector or small businesses. No costs to the private sector or small businesses are associated with compliance to these rules

9. Effect on Small Business (initial regulatory flexibility analysis): 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 an economic impact on a substantial number of small businesses under s. 227.24(3m), Stats.

10. Agency Contact Person: Jason Fleener, 101 South Webster Str., PO BOX 7921, Madison, WI 53707-7921. [phone], [e-mail].

11. 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:

Jason Fleener

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707

[e-mail]

608-220-9023

608-267-7857 (fax)

Comments may be submitted to the department contact person listed above or to [e-mail] until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and on the department’s website, at https://dnr.wi.gov/calendar/hearings/. Comments may also be submitted through the Wisconsin Administrative Rules Website at https://docs.legis.wisconsin.gov/code/chr/active.

RULE TEXT