ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 25.13 (1) and (2) (c) (second note); to renumber and amend NR 25.13 (2) (intro.) and (a); to amend NR 25.06 (2) (e) 1., 25.13 (2) (intro.), (a), (c), (c) (third note), (e), and (10) and (11) (intro); to repeal and recreate NR 25.06 (2) (e) 2. a. and b. and 25.13 (2) (f); and to create NR 25.06 (2) (e) 2. c. an d., 25.07 (2) (e) 5., 25.09 (3) (f), 25.10 (5), 25.102, and 25.13 (2) (at) relating to Lake Michigan whitefish management and Great Lakes commercial harvest reporting and affecting small business. |
FH-02-20
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted: The department has interpreted ss. 29.014 (1), 29.041, 29.519 (1m) (b), 29.519 (5), and 29.973, Stats., as authorizing this rule. 2. Statutory Authority: Sections 29.014 (1), 29.041, 29.519 (1m) (b), 29.519 (5), and 29.973, Stats., grant the authority for this rule. 3. Explanation of Agency Authority:
Section 29.014 (1), Stats., directs the department to establish and maintain any bag limits and 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., grants discretion to the department to establish commercial fish species harvest limits after giving due consideration to the recommendations made by the commercial fishing boards. In order to establish harvest limits, s. 29.519 (1m) (b), Stats., grants the department the authority to promulgate rules establishing formulas for harvest allocations among licensees or for the allotment of individual licensee catch quotas. Additional authorities granted to the department through s. 29.519 (1m) (b), Stats., include the authority to designate the size, kind and amount of gear allowed for harvesting fish, the authority to restrict the number of licenses issued, and the authority to designate areas in outlying waters as restricted to commercial fishing operations. This section also specifies that the limitations on harvests, licenses, restricted areas, and gear must be based on the available harvestable population of fish and must uphold the wise use and conservation of the fish to prevent overexploitation. Section 29.519 (5), Stats., authorizes the department to determine the form and manner that commercial fishers must use to submit commercial fishing records and reports. Section 29.973, Stats., requires commercial fishers to maintain and submit records of commercial fishing activities and directs the department to establish and implement a commercial fish reporting system. The department is given discretion regarding the form and manner of submission. 4. Related Statutes or Rules: The department has also promulgated emergency rules, FH-28-20 (E) / EmR 2114 and FH-10-21 (E) / EmR 2130, to increase the Zone 1 whitefish harvest allotment in Green Bay and implement associated regulations.
5. Plain Language Analysis:
This rule establishes that two lake whitefish population models will be used to calculate the total allowable commercial harvest (TAC) for whitefish in Green Bay and Lake Michigan, describes the model inputs, and provides a framework for allocating the TACs between the three management zones of Lake Michigan. Using the two models and this framework, this rule also updates the total allowable commercial harvest of lake whitefish for all three zones of Lake Michigan for the 2022 and 2023 license years. Updates are necessary to respond to the changing distribution and population dynamics of lake whitefish, as revealed through recent lake whitefish population modeling in Lake Michigan, including Green Bay. If the lake whitefish population is not managed appropriately, the sustainability of the shared commercial and recreational whitefish fishery may be compromised. The rule also implements provisions to minimize the incidental catch of bycatch in whitefish netting operations. Minimizing bycatch is important because Lake Michigan also supports a sport fishery, with lake trout as a key species in Lake Michigan proper and walleye, yellow perch, northern pike, smallmouth bass and muskellunge occupying Green Bay. This rule also requires use of the Electronic Fish Harvest Reporting System (EFHRS) for all Great Lakes commercial fishers, which provides quicker, more accurate access to harvest data than biweekly paper reporting. Electronic reporting has been a priority for managing commercial fisheries for many years, but to date, only a subset of fishers has opted to utilize the electronic reporting system.
SECTION 1 includes a statement that the total allowable commercial harvest (TAC) will be based on department recommendations and results from the Green Bay and Lake Michigan whitefish population models. Previously, a single model was used to inform the total allowable commercial harvest, which was not reflective of the distinct Green Bay and Lake Michigan stocks that have emerged in recent years.
SECTION 2 describes the quantitative population model inputs that will be used to calculate the department’s total allowable commercial harvest (TAC) recommendations for lake whitefish in Green Bay and Lake Michigan, which will serve as a foundation for the final total allowable commercial harvest limits and the allotments to the three whitefish commercial fishing zones.
To determine the proposed TAC recommendations, the department utilized two whitefish population models: one for Green Bay (consisting of Zone 1 in its entirety and part of Zone 2) and one for Lake Michigan (consisting of part of Zone 2 and Zone 3 in its entirety). During the current model runs, these models indicated that the Green Bay population could sustain additional harvest, while the Lake Michigan population was not producing sufficient whitefish to warrant the current TAC of 2.88 million pounds for Green Bay and Lake Michigan combined. For Green Bay, the current TAC resulting from the population model is 1,176,889 pounds per license year, which would allow for an increase in the Zone 1 allowable harvest to 569,788 pounds once this rule is implemented (consistent with emergency rule FH-10-21 (E) / EmR 2130). The remainder of the Green Bay TAC, 607,101 pounds, could be harvested in Zone 2 once this rule is implemented. The TAC of 1,176,889 pounds represents 50% of the commercial safe harvest limit derived from the Green Bay population model, with the other 50% being allocated to the whitefish sport fishery. For Lake Michigan, the TAC resulting from the population model is 800,407 pounds per license year. With 351,487 pounds allocated to Zone 3 upon rule implementation, this leaves the remainder of the Lake Michigan TAC, 448,920 pounds, which can be harvested in the Green Bay waters of Zone 2. The TAC of 800,407 pounds represents 100% of the commercial safe harvest limit derived from the Lake Michigan population model. At this time, no portion of the Lake Michigan TAC is allocated to the sport fishery in Lake Michigan because the whitefish sport fishery is very small in Lake Michigan. If a substantial whitefish sport fishery develops in the coming years, an appropriate portion of this TAC will be allocated to sport anglers.
Under previous rules, the department increased the total allowable commercial harvest for all zones combined to reach the current level of 2.88 million pounds, with the additional poundage from the increase allocated equally between all three zones, and the department also codified the future zone-specific harvest limit plan for situations in which a TAC for Lake Michigan and Green Bay beyond 2.88 million pounds was recommended. However, because the overall total allowable commercial harvest for all zones is now based on the two whitefish population models rather than one model for the entirety of Lake Michigan, including Green Bay, the components of the previous total allowable commercial harvest that applied to all three zones overall are no longer relevant.
SECTIONS 3 and 4 provide the framework for determining the amount of whitefish that may be harvested in zones 1, 2 and 3 of Green Bay and Lake Michigan when the TACs are adjusted in current and future years. SECTION 4 sets the allowable harvest for the 2022 and 2023 license years. Section 3 establishes caps on the amount of whitefish poundage which may be allocated to Zone 1 from the Green Bay TAC (up to 48.4148% (569,788 pounds) of the Green Bay TAC in the 2022 and 2023 license years and up to 67.9758% of the Green Bay TAC or 800,000 pounds, whichever is less, after December 31, 2023). SECTION 3 also establishes caps on whitefish poundage in Zone 3 (43.9135% of the Lake Michigan TAC or 351,487 pounds, whichever is less) and the remainder of the TACs from the Green Bay and Lake Michigan models going to the Zone 2 allowable harvest. To allow commercial fishers more flexibility in managing their business operations, additional poundage beyond the levels from the population models may be allotted to Zone 2 in the future. However, overall harvest for Zone 2 would remain limited to the levels of the TACs by the method in SECTION 5; however, if additional Zone 2 poundage is granted it would allow individual commercial fishers to make greater use of their existing individual catch quotas until the Zone 2 harvest cap is reached. When the recommended allotment for Zone 2 exceeds the level resulting from the population models, the excess amount is allocated to the Green Bay and Lake Michigan waters of Zone 2 under the same proportions as how the poundage for Zone 2 is allocated under the Green Bay and Lake Michigan population models (as outlined in SECTION 2 above). So, 57.5% of the additional poundage would be allocated to the Green Bay waters of Zone 2 and added to the poundage for Green Bay waters of Zone 2 originating from the population model, and 42.5% of the additional poundage would be allocated to the Lake Michigan waters of Zone 2 and added to poundage for Lake Michigan waters of Zone 2 originating from the population model.
SECTION 4 also establishes the proposed annual TACs and annual zone-specific allowable harvest allocations of the TACs for the 2022 and 2023 license years, with an annual Zone 1 allocation of 569,788 pounds, a Zone 2 allocation of 1,056,021 pounds (Zone 2 waters of Green Bay and Zone 2 waters of Lake Michigan combined), and a Zone 3 allocation of 351,487 pounds. Including these allocations in the rule would allow them to take effect immediately upon implementation of the rule to cover the remainder of the 2022 license year and the 2023 license year, and future zone-specific allowable harvest allocation recommendations would be presented to the Natural Resources Board for approval.
SECTION 5 establishes a harvest cap system for whitefish harvest in Zone 2 waters of Green Bay and Lake Michigan to allow commercial fishers flexibility in utilizing their individual catch quotas while ensuring a sustainable fishery. Commercial fishing licensees with individual licensee catch quota allocations in Zone 2 may fish in both the Green Bay and Lake Michigan portions of Zone 2 until the Zone 2 portion of each TAC (Green Bay or Lake Michigan TAC minus the Zone 1 or Zone 3 portion of the TAC, respectively), is reached, whereby the department would close Zone 2 waters of Lake Michigan, Green Bay or both to additional harvest to prevent exceeding the TACs for Green Bay and Lake Michigan.
SECTION 6 requires licensees fishing for whitefish in Lake Michigan and Green Bay, or members of their crew, to notify the department of the location of trap nets upon setting or moving the net and the name of the trap net. Some commercial fishers in Green Bay and Lake Superior already do this. The exact locations of trap nets are needed to help reduce user conflicts as well as for fisheries management purposes. Under this rule, commercial fishers in Green Bay and Lake Michigan would name each net and record each lifted net into the electronic fish harvest reporting system (EFHRS).
SECTION 7 establishes criteria for fishers fishing with trap nets for whitefish in southern Green Bay to ensure that the department can appropriately monitor trap net activities in this area and collect data on the catch composition of fish caught in trap nets. This section would limit the number of trap nets that could be set in grids 901, 902 and 1001, require licensees to notify the department prior to lifting a trap net to allow the department to monitor the lift and collect data, and would require the licensee to report the bycatch by number through EFHRS.
SECTION 8 replaces the paper harvest reporting requirements for Great Lakes commercial fishers with a requirement to report electronically. Currently, state-licensed commercial fishers may voluntarily elect to use electronic harvest reporting in lieu of paper reporting. Electronic harvest reporting will be mandatory for all Lake Michigan, Green Bay and Lake Superior state commercial fishers under this rule. Pursuant to NR 25.01 (3), this rule will also apply to tribal commercial fishers if the Lake Superior Fishing Agreement or an equivalent agreement is no longer in effect. Currently, tribal commercial fishers are required to report harvest to the appropriate tribe in accordance with provisions of the Agreement.
SECTION 9 requires electronic harvest reporting for all commercial fishing licensees operating in Green Bay, Lake Michigan and Lake Superior, regardless of species fished. Electronic harvest reporting is much quicker and more accurate than biweekly paper reporting, which allows the department to better track harvest of commercial fish and bycatch levels.
SECTION 10 describes the method by which commercial fishers will report their daily catch, and provides that commercial fishers would have the option to first record the required reporting information on a paper form before entering it into the electronic fish harvest reporting system by 11:59 p.m. that same day.
SECTION 11 removes the requirement for licensees to notify the department when they are unable to access EFHRS and will be recording their information on a paper report, requires licensees to record their information on the paper form after completing the last net lift of the day and before starting for shore when they are unable to access EFHRS, and specifies that licensees will be required to submit the information from any paper reports to EFHRS once they are again able to access EFHRS. Since electronic reports will be required rather than elective and the paper backup system will ensure proper record-keeping in a timely manner, the department will be able to follow up appropriately with licensees without the notification requirement when the licensee is unable to access EFHRS.
SECTION 12 repeals the note explaining how the department will provide the designated phone number and email address to licensees with which to notify the department when they are unable to access EFHRS. This note is no longer needed since licensees will no longer be required to notify the department when they are unable to access EFHRS.
SECTION 13 modifies the note language relating to paper report forms, which will no longer be submitted biweekly but may be temporarily utilized to record catch information when a licensee is unable to access EFHRS.
SECTION 14 describes how licensees will notify the department through EFHRS rather than a phone call or email to the department when they are unable to weigh their landed catch by the end of the day. Once the department has been notified, the licensee would be able to weigh their catch the next business day.
SECTION 15 removes duplicative language that is already established elsewhere in s. NR 25.13 (2), Wis. Admin. Code and through this rule, and requires whitefish fishers in Lake Michigan and Green Bay to report the name of lifted trap nets into EFHRS each day that they are lifted to check for fish, but not moved to a new location. SECTION 16 removes references to s. NR 25.13 (1), Wis. Admin. Code, which is no longer an option for commercial fishers under this rule. 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 June 11, 2020, the department held a preliminary public hearing on the Statement of Scope for FH-02-20. Sixteen members of the public attended the virtual hearing either by computer or phone. Of the comments received at the hearing and in writing during the comment period, two people registered in support of the scope statement, 14 in opposition and 4 did not state a position. Some of the comments in opposition to the scope statement related to specific rule proposals that had not yet been discussed. Comments included a desire for a sport fishing advisory team for this rule to advise the department on behalf of sport fishers (which the department subsequently organized), that the scope statement is needed to create a rule to address whitefish and the healthy populations in Green Bay, that the scope statement should address user conflict created by nets set in areas popular with sport fishers, that bycatch mortality and disposition should be addressed, that TAC reductions would impact businesses that rely on commercial fishing, that the rule would impact sport fishers and associated businesses, and that sport fishing and hunting fees should not be used to fund activities relating to commercial fishing management.
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. Wisconsin, Minnesota and Michigan all have a Lake Superior multi-species commercial fishery for such species as lake trout, lake whitefish and cisco, and regulate it through seasons, limitations on the number of licenses, and gear restrictions.
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 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 (allowable harvest) and other harvest management regulations for lake whitefish in Green Bay and Lake Michigan. 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.
