The scope statement for this rule, SS 104-18 was published in Administrative Register 753 A1 on September 4, 2018 and was adopted by the Natural Resources Board on September 26, 2018. The final rule was approved by the Governor on August 29, 2019. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend 20.09 (2) and (3), 20.15 (1), 20.18 (1), 20.20 (18)(a) 1., 20.20 (24)(a) 1. and 2., 20.20 (39)(b) 1. and 2., 20.20 (73)(b) 4., 20.20 (73)(k), 21.04 (5), 21.06 (1)(d), 22.05 (1), 22.06 (1)(d), 23.05 (5)(intro.) and 23.085; to repeal and recreate NR 21.05 (1); and to create 20.05 (5m), 20.20 (5)(b) 1. c. and d. and 2. b. and c., 20.20 (6)(a) 1. b. and c., 20.20 (11)(a) 1. b. and c., 20.20 (12)(a) 1. b. and c. and 2. b. and c., 20.20 (13)(b) 1. b. and c. and 2. b. and c., 20.20 (17)(a) 1. b. and c., 20.20 (22)(a) 1. b. and c. and 2. b. and c., 20.20 (23)(a) 1. c. and d. and 2. b. and c., 20.20 (25)(a) 1. b. and c., 20.20 (27)(b) 1. b. and c., 20.20 (32)(a) 1. b. and c., 20.20 (33)(a) 1. b. and c., 20.20 (42)(a) 1. b. and c., 20.20 (47)(a) 1. b. and c., 20.20 (53)(a) 1. b. and c. 20.20 (56)(a) 1. b. and c. and 2. b. and c., 20.20 (62)(a) 1. b. and c., 20.20 (73)(b) 1. b. and c., 2. b. and c. and 3. b. and c., 20.20 (73)(b) 5. b. and c. and 6. b. and c., 20.20 (73)(km), 21.06 (1)(f), 21.11 (4m), 22.06 (1)(f), 22.11 (26), 23.065 and 25.05 (3)(h) relating to taking catfish and rough fish by hand or with a bow and arrow or crossbow.
FH-16-18
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted:
Sections 29.014 (1), 29.041 and 29.053 (2), Wis. Stats. have been interpreted as authorizing the department to conserve the fish supply on waters of the state while continuing to provide good opportunities for fishing. Sections 29.405 and 29.406, Wis. Stats have been interpreted as authorizing the department to create rules regulating catfish harvest by bow, crossbow or by hand. Section 29.519 is interpreted as allowing the department to regulate commercial fish harvest. 2. Statutory Authority:
3. Explanation of Agency Authority:
The department is pursuing these rules in response to the passage of 2017 Act 297, which legalized the harvest of catfish by bow and arrow, crossbow or by hand. Under s. 29.014 (1), Stats., “Rule-making for this chapter,” the department is directed 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. The department is authorized to regulate fishing on and in all interstate boundary waters and outlying waters by s. 29.041, Stats., “Department to regulate hunting and fishing in interstate waters.” Provisions of s. 29.053 (2), Stats., “Specific open and closed seasons,” provide that the department may establish conditions governing the taking of fish for the state as a whole, for counties or parts of counties, or for waterbodies or parts of waterbodies. Section 29.405, Stats., “Fishing with bow and arrow or crossbow,” describes the conditions under which taking catfish and rough fish by bow and arrow or crossbow are allowed. This section provides that the department’s authority to promulgate rules regulating bow and crossbow seasons, bag limits, length limits, zones and other limitations for catfish and rough fish is not affected. In s. 29.406, “Fishing by hand,” the department is authorized to promulgate similar rules relating to taking catfish or rough fish by hand. The department has the authority to regulate commercial harvest, including harvest limits, gear restrictions and fishing area restrictions under s. 29.519, Stats., “Commercial fishing in outlying waters.” 4. Related Statutes or Rules:
Ch. NR 26, Wis. Admin. Code, contains fish refuges within the state that are closed to all forms of fishing, including fishing for catfish and rough fish. A companion emergency rule, FH-15-18(E), was promulgated in December 2018.
5. Plain Language Analysis:
Flathead and channel catfish are valued Wisconsin game fish, and closed seasons, bag limits, and size limits have been established for fishing with hook and line, setline and bank poles to ensure sustainable use. Under 2017 Act 297, taking catfish by hand, bow and arrow and crossbow is now allowed, and under emergency rule FH-15-18(E), seasons, size or bag limits for these methods of take are now in place. In certain situations, including spawning and overwintering seasons, catfish will be very vulnerable to harvest using these new methods without these harvest regulations. The proposed rule creates bowfishing regulations for flathead and channel catfish that are similar to those currently in place for rough fish, but with specific bag and size limits. The rule also establishes a season for fishing by hand for flathead and channel catfish, subject to bag limits, size limits, gear restrictions and other regulations. Prior to Act 297, Wisconsin did not have any statewide rules allowing the harvest of game fish by bow, crossbow or by hand, but rough fish could be harvested by bow and crossbow in most of the state and by hand on some waters. Since the proposed hand fishing season overlaps with the spawning season for catfish that occurs from May to July, with most flatheads spawning in June and July, and since the bow and crossbow season is continuous on most waters, this rule creates opportunity for harvest with these methods.
This rule will apply on inland and boundary waters of the state. Where special size regulations and closed seasons or refuges exist, anglers will adhere to the regulations on those waters in addition to complying with the bag limits and equipment restrictions described in this rule.
This rule will also prohibit commercial harvest of catfish by bow, crossbow or by hand. While commercial harvest with bow or crossbow would likely be inefficient and not pursued, hand fishing for commercial purposes could quickly deplete local catfish populations during certain times of the year. This prohibition would apply to commercial fishers that sell their catch under the authority of a commercial fishing license.
This rule will also correct inconsistencies in rough fish and bullhead regulations between administrative code and the new statutes. Bullheads are a type of catfish, and thus under Act 297, they can be harvested by bow and arrow, crossbow or by hand. This rule adds these methods to administrative code with a season framework similar to the bowfishing season for rough fish and no size or bag limit on most waters.
SECTION 1 provides that no person may take catfish with any gear other than using one’s hands, and no person may take catfish with the aid of any type of breathing apparatus.
SECTION 2 adds catfish and bullheads to the list of species that can be taken with a bow and arrow or crossbow.
SECTION 3 establishes hand fishing as an authorized method for harvesting catfish and bullheads, and provides exceptions for waters with closed seasons and those that are designated as fish refuges under ch. NR 26, Wis. Admin. Code. SECTION 4 removes the total daily bag limit for flathead catfish on the Lake Winnebago system, which is duplicative because is already established in s. NR 20.20 on those specific waters. SECTIONS 5 through 27 create seasons, bag limits and size limits for taking catfish with bow and arrow, crossbow or by hand on specific waters throughout the state.
