ORDER OF THE STATE OF WISCONSIN
NATURAL RESOURCES BOARD
AMENDING
AND REPEALING
RULES
The statement of scope for this rule,
SS
117-15
, was approved by the Governor on
October 7, 2015, published in
Register No.
718A2
on
October 12, 2015
, and approved by the Natural Resources Board on
October 28, 2015
. This rule was approved by the Governor on December 22, 2015.
The Wisconsin Natural Resources Board proposes an order to amend NR 20.20 (73) (n), 25.06 (1
)(
a) 1. to 3., and 26.02 (1), and to repeal 25.10 (1) (b) 8., Wis. Adm. Code, relating to lake trout harvest limits in Lake Superior and affecting small business.
FH-15-15
(E)
Analysis
Prepared by the Department of Natural Resources
1. Statute I
nterpreted:
Sections
29.014
(1)
,
29.041
and
29.519
(1m)
(b)
, Stats.
2. Statutory A
uthority:
Sections
29.014
(1)
,
29.041
and
29.519
(1m)
(b)
, and
227.4,
Stats.
3. Explanation of Agency A
uthority:
Section
29.014 (1)
, Stats., directs the department 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.
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., authorizes the department to limit the number of Great Lakes commercial fishing licenses, designate the areas in the outlying waters under the jurisdiction of this state where commercial fishing operations are restricted, establish species harvest limits, and designate the kind, size and amount of gear to be used in the harvest.
Pursuant to s.
227.4,
Stats.,
the department finds that an emergency exists and that this rule is necessary for the preservation of the public peace, health, safety, or welfare. The welfare of state-licensed commercial fishers,
Chippewa
comme
rcial fishers, recreational fish
ers, and associated businesses is
threatened by a decline in the lake trout population in the
Wisconsin waters
of Lake Superior
, which is the result of harvest pressure by various user groups
. The decline in lake trout popul
ation abundances
requires
harvest
reductions
by all parties
in order to ensure a sustainable lake trout fishery over the long-term. Lake trout harvest limits
are discussed
among the Department of Natural Resources and the Red Cliff and Bad River Bands of Lake Superior Chippewa
that are all parties to the
2005-2015 Lake Superior Fishing Agreement
.
This emergency rule is needed to preserve the public welfare and adhere to the terms of the
Agreement
.
4. Related Statutes or R
ule
s
:
Section
29.973
,
Stats.,
Commercial fish reporting system
.
Note:
N
otwithstanding
the repeal and recreation of c
h.
NR
20
.20
on April 20, 2016
,
by
CR 14-023
,
this emergency rule shall remain in effect until the initial 150 day effective period and all extension periods under s.
227.24
have expired.
5.
Plain Language A
nalysis:
The purpose of the emergency rule is to amend Lake Superior lake trout harvest limits
for the 2015
‑16
open season
and implement other reasonably related
changes
stemming from discussions regarding the Lake Superior Fishing Agreement
. The total allowable catch of lake trout in Wisconsin waters of Lake Superior is divided among
Chippewa-licensed
comm
ercial fisher
s, st
ate-licensed commercial fisher
s, Chippewa
subsistence fishers, and
recreational
fisher
s.
This emergency rule
amend
s the annual commercial fishing harvest limit for lake trout in the Apostle Isla
nds region of Lake Superior and
amend
s the bag limits and size restrictions for recreational anglers
in order to manage the total population
.
The rule also prohibits previously allowed commercial fishing within certain refuge areas.
The recreational
lake trout open season runs from
December 1
, 201
5
,
through September 30
, 201
6
. The commercial fishing season is open November 28
, 201
5
,
through September 30
, 201
6
.
Section
1
revises
the recreational
fishing
minimum size limits
in waters east of
a line running north-south from
Bark Point
(
46° 53.21’, -91° 11.16’
)
on the south shore of
Lake Superior
,
an area also known as “WI-2.”
Instead of a 15-inch minimum, only 2 fish may be harvested between 20 and 25 inches and only 1 fish may be harvested if it is greater than 40 inc
hes.
N
o other size of lake trout may be harvested
in WI
‑
2
.
T
he size limit
s
for lake trout harvested by sport fishers in waters west of a
line running north-south
from
Bark Point
(an area known as “WI-1”)
will
remain
unchanged
:
a 15-inch minimum
size limit but only 1 lake trout
may be harvested over 25 inches.
In Lake Superior, the current daily bag limit for all trout species is 5 fish of which
only 1 may be a rainbow trout, only 1 may be a brook trout
, and only 3 may be lake trout.
The 3-fish
lake trout daily bag limit
will remain in
Wisconsin waters of
Lake Superior
(WI-1 and WI-2 combined)
.
However, i
f the recreational lake trout harvest
in the WI-2 waters east of Bark Point
during the 2015-16 fishing season
reach
75% of the total allowable recreational lake trout harvest of 9,800 fish (9,800*0.75 = 7,350) the lake trout bag limit
in the WI-2 waters east of Bark Point
will be reduced to 0 with catch and release fishing for lake trout only. Recreational
lake trout harvest is measured by department creel surveys during which staff gather harvest information directly from anglers.
The bag limit would change
upon issuance of an order of the department secretary and publication in the official state newspaper
.
If that occurs, up to 3 lake trout per day may continue to be harvested in WI-1 waters west of Bark Point.
In addition,
because
of
differences between WI-1 and WI-2,
this rule language separate
s
the lake trout bag limits from the current 5-trout total daily bag limit for Lake Superior
. Therefore
, anglers will be able to take up to 3 lake trout per day in addition to up to 5 other trout per day.
Section
2
revises
the
annual state-licensed and Chippewa-licensed
commercial fishing harvest quota for lake trout in waters
east of a line running north-south from Bark Point on the south shore of Lake Superior
.
To
limit
the number of lake trout harvested,
commercial fishers
are
issued tags
that must be attached to harvested lake trout. The tags
issued to state-licensed commercial fishers
for the 2015-16
season have unique serial numbers that are designated for use
in
either WI-1 or WI-2
waters
only
.
Section
3
remove
s the
Hagen’s Beac
h Restricted Fishing area,
which is normally
closed to commercial fishing June 1 through August 31,
and
open
s
it to fishing during those months
of
the 2015-16 season.
Section
4 prohibits previously allowed commercial fishing within
the Gull Island Refuge
area. The
Gull Island Refuge, wherein the lake bottom lies at a depth of 35 fathoms (210 feet) or more, has been open to limited commercial fishing in prior years. In order to limit the placement of fishing nets in the water and reduce potential for lake trout bycatch, it will be closed to
commercial
fishing in the 2015-16 season
.
6.
Summary of, and Comparison with, Existing or Proposed F
ederal
S
tatutes and
R
egulation
s
:
The department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin’s waters of Lake Superior.
7. Comparison with
S
imilar
R
ules
in Adjacent S
tates:
Of the four adjacent states, only Minnesota and Michigan have lake trout fisheries on the Great Lakes. The commercial harvest of lake trout from Minnesota waters of Lake Superior is limited to a population assessment fishery. In Michigan waters of Lake Superior there is no state-licensed commercial fishery, but tribal harvest is guided by the same modeling approach as in Wisconsin
,
although harvest limits are much lower than in Wisconsin
.
8. Summary of
Factual Data and Analytical M
ethodologies
Used and How Any Related Findings Support the Regulatory Approach C
hosen
:
An assessment of
lake trout
populations
in the Apostle Islands region of Lake Superior is conducted
by the Wisconsin State-Tribal Technical Committee
using the latest available data and modeling. Based on those results and recommendations from the
C
ommittee, the
harvest quotas associated with the
Lake Superior
Fishing
Agreement are
re-negotiated to change the
allowable
harvest of lake trout by
various user groups
and
sometimes
to address other issues related to
shared
harvest of lake trout and other species
by state and Chippewa
fishers.
There has been a steady decline in lean lake trout abundance in Lake Superior since the early 2000s. This decline has been confirmed by indepe
ndent surveys conducted by the d
epartment and has been projected by models used to set safe harvest levels. Some level of decline was expected because of high harvest limits in the early 2000s, which were in response to several large year classes (numbers of fish spawned in the same year) predicted to enter the fishery. However, successive versions of a statistical catch-at-age model also suggest that previous estimates of lake trout abundance were inflated. This combination of increased harvest and re-scaled estimates of lake trout abundance
caused
total allowable catch recommendations to decline. While relatively stable abundances of spawning lake trout suggest that this decline is still reversible, action nee
ds to be taken to stop the
lake trout population’s decline. The decline
in
lake trout
abundance
requires
harvest reductions in order to ensure a sustainable lake trout fishery over the long-term.
To help determine the bag and size limit changes for recreational fishing, the department had an online survey
open from September 28 to October 15
and held two public meetings in September 2015 to gather input on regulation options.
Each option was presented showing its level of risk associated with meeting or exceeding the recreational fishing quota before the season ends in September 2016.
Based on
written and verbal
public comments and results from the survey,
the most biologically and socially acceptable
bag and size limit regulations were
selected.
In the 2014-15 season, the recreational angling daily bag limit was 1 lake trout between 20 and 25 inches and only 1 if greater than 35 inches. Anglers desired a larger bag limit and will have that in the 2015-16 season under this emergency rule, although there is a greater risk of
reach
ing the
overall
harvest limit
and having a season closure
(catch and release only)
.
This rule includes changes to administrative code that support
fisheries management policies and goals.
The department took steps to e
nsur
e
the accuracy, integrity, objectivity and consistency of data used
to
prepar
e
the proposed rule and related analysis.
9. Analysis and Supporting Documents Used to D
etermine
the
E
ffect on
S
m
all B
usiness
or in P
reparation of
an
Economic Impact R
eport:
This
rule imposing harvest re
vis
ions is necessary in order to ensure a sustainable lake trout fishery over the long-term, an economic and natural resource benefit for all affected. The rule may have a moderate economic impact in the Lake Superior region, but an exact amount of impac
t is unknown at this time.
T
he
d
epartment
met
with the state
-
licensed commercial fish
ing
r
epresentatives
and
held two
public meeting
s
in
September 2015
to
inform stakeholders of the current status of lake trout in Wisconsin waters of Lake Superior and
to discuss
lake trout
regulation options for
the
201
5
-1
6
fishing season
.
Although this emergency rule enacts lower harvest limits than those
described
in administrative code, it puts in place higher limits for both commercial and recreational fishing
than those implemented by an emergency rule during the 2014-15 season
.
1
0
. Effect on
Small B
usiness
- I
nitial
Regulatory Flexibility Analysis
:
The rule will impact the harvest of lake trout and other species by state-licensed commercial fishers, Chippewa
-licensed
fishers, and recreational
fishers. Because of the decline in lake trout populations, all groups that fish in Lake Superior would have a reduction in overall harvest limits, resulting in potenti
al short-term income reduction (compared to prior years)
for commercial fishers. However, impact on commercial fishing businesses may be
buffer
ed
by
the
ability to transfer i
ndividual license catch quotas –
through
lake trout tags
designated for use
in WI-1 and WI-2
–
between state-licensed commercial fishers. Quota transfers are already a common practice that are approved and documented by the department, as authorized by s. NR 25.08.
In addition,
this emergency rule puts in place higher limits for both commercial and recreational fishing than those implemented by an emergency rule during the 2014-15 season.
Minimal
to no
impact is expected for businesses or business associations that do not rely on harvest of lake trout (e.g., charter fishers that promote catch and release, commercial fishers that use trap nets).
It may be a positive impact for fishing guides and charter businesses because the rule
increases the overall trout recreational daily bag limit. A
nglers will be able to take up to 3 lake trout per day in addition to up to 5 other trout per day.
The
rule does not impose any compliance or reporting requirements nor would any design or operational standards be contained in the rule.
11
. A
gency Contact
P
erson:
Terry Margenau, Lake Superior Fisheries Supervisor
PO Box 589
Bayfield, WI 54814-0589
715-779-4035
12
. Place where comments are to be submitted and deadline for submission:
Section
1
NR
20.20 (73
)(
n)
is
amended
to read:
NR 20.20 (73
)
SPECIES
OR WATERS NOT LISTED IN SUBS. (1) TO (72)
(n)
T
rout
and
salmon
|
1. Mid lake reef complex
|
a. Hook and line
|
Continuous
except there is no open se
a
- son for lake trout
|
5 in total, of which 0 may be lake trout.
No
person may
possess
lake trout within this area
|
10
|
|
|
2. Green Ba
y
, major Green Bay tributaries, all other waters of Lake Michigan, Lake
Michigan
tributaries
|
a. Hook and line
|
Continuous
except the
open
season
for lake trout is March 1 to
October
31
|
5 in total but only 2 may be lake trout
|
10
|
|
|
3. All other tributary streams,
rivers
and
ditches to Green Bay upstream to the first dam or lake
|
a. Hook and line
|
First Saturday in May to the first Sunday in March
|
5 in total but only 2 may be lake trout
|
10
|
|
|
4. Lake Superior
, excluding lake trout
|
a. Hook and line
|
Continuous
except the
open
season
for lake trout is Dece
m
ber 1 to September 30
|
10 in total but only 5
may
be
salmon and
only
5
may
be trout, of which only 1 may be a rainbow
trout,
only 1 may be a brook trout
and only 3 may be lake trou
t
with only 1 lake trout
longer
than 25
inches
;
when recreational
lake trout
harvest
du
r
ing
a
season
me
a
sured
by
depar
t
ment
creel
surveys exceeds
24,748 lake trout the lake trout bag limit is reduced
to
1
and when
recreational lake
trout
harvest during
that
same time
exceeds 25,529
lake
trout the lake trout bag limit is reduced to 0
|
Rainbow
trout
26, brook
trout
20,
other trout 15,
splake
15
,
brown trout 15,
salmon
none
|
|
|
5. Lake Superior, lake trout only
|
a. Hook and line
|
Dece
m
ber 1 to September 30
|
3
in total
. W
hen recreational
lake trout
harvest
du
r
ing
a
season
i
n waters east of a line running north-south from Bark Point (46° 53.21’, -91° 11.16’)
me
a
sured
by
depar
t
ment
creel
surveys exceeds
7,350 lake trout the lake trout bag limit
only
in those waters east of Bark Point
is reduced
to
0 (catch and release only)
. Bag limit m
odifications by the department
shall become effective upon issuance of an order of the secretary
and
publication in the official state newspaper.
|
I
n waters east of a line running north-south from Bark Point (46° 53.21’, -91° 11.16’)
only 2 fish
between 20 and 25 and
1
fish longer than 40
; For
lake trout in waters west of a line running north-south from Bark Point
the minimum is
15
and
only 1
fish
longer than 25
|
Section
2
NR
25.06 (1)
(a)
1.,
2., and 3.
are
amended
to read:
NR 25.06 Quotas and catch fees.
(1)
Lake Superior
. (a)
Lake trout.
The total allowable annual harvest of lake trout by state and tribal commercial fishers and tribal home use fishers under par. (b) during the open season in Wisconsin waters of Lake Superior east of Bark Point (WI-2) and west of Bark point (WI-1) shall be determined by the natural resources board based upon recommendations from the state/tribal biological committee which consists of state, tribal and national biological service representatives.
1.
The total allowable commercial and
tribal
home use harvest in the waters of Lake Superior east of Bark Point may not exceed
50,100
44,200
lake trout. The total allowable commercial and
tribal
home use harvest in waters of Lake Superior west of Bark Point may not exceed
2,850
5,130
lake trout.
2.
That number of lake trout to be harvested by non-Indian licensed commercial fishers from the waters of Lake Superior east of Bark Point may not exceed
5,300
4,900
lake trout, and from the waters of Lake Superior west of Bark Point may not exceed
2,150
4
,
430
lake trout.
3.
That number of lake trout to be harvested by the Red Cliff and Bad River bands, including both commercial and
tribal
home use fishers, from the waters of Lake Superior east of Bark Point may not exceed
44,800
39,300
lake trout. That number of lake trout to be harvested by the Red Cliff and Bad River bands, including both commercial and
tribal
home use fishers, from the waters of Lake Superior west of Bark Point may not exceed 700 lake trout. If the Red Cliff and Bad River bands do not reach an agreement on the method of allocating the tribal quota between them, the department may divide the quota 50% for the Bad River band and 50% for the Red Cliff band, or by any other equitable method.
Section
3
NR 25.10 (1)
(b) 8.
is
repealed.
Section
4
NR 2
6.02 (1) is amended to read:
NR 26.02 (1)
All waters bounded by a line from the Gull island light south to the northernmost point of Michigan island and then proceeding in a southerly direction following the shoreline of Michigan island to the Michigan island light, then southerly towards the center of the mouth of the Bad river in Ashland county to latitude 46° 40', then due east to the Michigan state line; then northerly along the state line to latitude 46° 59.3'; from that point due west to longitude 90° 26.5' and then due south to the Gull island light
; except that licensed commercial fishers may fish all that area within these external boundaries wherein the lake bottom lies at a depth of 35 fathoms (210 feet) or more;
and, except in those included waters less than 7 fathoms
in depth which immediately adjoin Michigan island, gill nets with a mesh size of 2 ¾ '' or less stretch measure may be used from November 5 to December 5 for the taking of
menominee
whitefish. Float nets with a maximum stretch measure of 3 inches may be fished in this area for lake herring from November 1 to December 15 out to a bottom depth of 25 fathoms. The nets shall be a minimum of 2 fathoms from the bottom
.
Section
5
. Statement of Emergency.
The welfare of state-licensed commercial fishers,
Chippewa
tribal comme
rcial fishers, recreational fish
ers, and associated businesses is threatened by a decline in the lake trout population in the Apostle Islands vicinity of Lake Superior. The emergency rule is necessary to imple
ment harvest limits
and other reasonably related changes
for the 2015-16
lake trout harvest seasons.
Section
6
.
Effective Date
.
This rule shall take effect upon publication in the official state newspaper, as provided in s.
227.24
(1)
(d)
, Stats.
Section
7
. Board adoption.
This rule was approved and adopted by the State of Wisconsin Natural Resources Board on
December 9, 2015
.
