ORDER OF THE STATE OF WISCONSIN
NATURAL RESOURCES BOARD
AMENDING
AND CREAT
ING
RULES
The statement of scope for this rule,
SS
053-16
, was approved by the Governor on
June 3, 2016
, published in
Register No.
726A1
on
June 6, 2016
, and approved by the Natural Resources Board on
June 22, 2016. This
emergency
rule was approved by the Governor on August 15, 2016.
The Wisconsin Natural Resources Board proposes an order to
amend NR 25.08 (intro.) and to create
NR 25.06 (1) (c), 25.07 (1
) (b), and 25.13 (1) (d), Wis
. Adm. Code, relating to cisco (lake herring)
harvest
in
Lake Superior
and affecting small business.
FH-12-16
(E)
Analysis
Prepared by the Department of Natural Resources
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)
and
(5)
, 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 fi
shing operations are restricted;
estab
lish species harvest limits;
designate the kind, size
,
and amount of gear to be used in the harvest
; and require fishing records be submitted to the department
.
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.
In order to preserve the welfare of state-licensed commercial fishers,
Chippewa
tribal commercial fishers, recreational fishers, and associated businesses, as well as the welfare and sustainability of the cisco (lake herring) population in Lake Superior, the department finds that an emergency rule is necessary to implement rule changes for cisco harvest. In addition, cisco
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 Lake Superior Fishing Agreement
.
This emergency rule is needed to preserve the public welfare and
commit to
the
Agreement
process
.
4. Related Statutes or R
ule
s
:
Section
29.973
,
Stats.,
Commercial fish reporting system
.
A similar permanent rule, FH-13-16, will also be pursued following the emergency rule.
5.
Plain Language A
nalysis:
Cisco are a key species in the Lake Superior ecosystem and are harvested in Wisconsin waters for commercial, recreational, and subsistence purposes by state licensees and members of the Red Cliff and
Bad River Bands of Lake Superior Chippewa Indians. This rule is needed to manage the long-term sustainability of the cisco population. Currently the commercial harvest season is open year-round and there is no size limit or harvest quota in place for cisco. The recreational angling season is open year round in Lake Superior with a 10-fish daily bag limit per person and no size limit.
Only a few hundred cisco are harvested by recreational anglers each year.
Maintaining a healthy cisco population is important for several reasons:
•
Cisco
are an important species for both
recreational
and commercial harvest. Cisco contribute to the local economy through the tourism
and commercial fishing industries.
Cisco are an important food chain link between trophic levels. They link the lower (zooplankton) to the upper (lake trout) trophic levels.
Cisco are an
important forage food for lak
e trout, a popular species which is
seeing a decline.
•
A
decline in cisco could have negative consequences on whitefish and other near-shore fish, because the eggs of cisco are an important part of other species’ diets.
•
Cisco
reproduction is variable, with populations relying on strong year classes (fish born in the same year) to sustain them. This unpredictable year to year recruitment into the population can make cisco vulnerable to overfishing.
•
The
linkage between Wisconsin’s waters and those of other
states and
jurisdictions are not totally understood.
It is
possible t
hat harvest in Wisconsin waters
affects
populations elsewhere in
Lake Superior
.
Section
1
e
stablishes
that
the total allowable annual
h
arvest of cisco by state
fishers
in Wisconsin waters of Lake Superior
will not excee
d
7.5
percent of
the most recent
estimate of the biomass of cisco in Lake Superior
. The department conducts hydroacoustic
s surveys to determine the biomass estimate, and
harvesting up to
7.5
percent of the t
otal cisco biomass each year is
expected to be
a sustainable level for the cisco population.
Section
1 also states that
the to
tal allowable state
harvest in the waters of Lake
Superior may not exceed
1,497,900
round weight pounds in a calendar year.
S
tate commercial fishers must limit their total targeted harvest of cisco using gill nets from October 1 through
December 31
to
1,317,900 round weight pounds.
Throughout the year,
state licensed commercial fishers
, recreational fishers, and department assessment surveys
may harvest up to an additional
180,000 round weight pounds.
The department shall subdivide the 180,000 pounds among
the user groups
.
Section
2
establishes that the total
allowable annual cisco
commercial
harvest quota
shall be split equally among e
ach
of the 10
state commercial
fishing
license
s in Lake Superior as individual licensee catch quotas
.
Section
3 states that license holders may transfer individual licensee catch quotas for cisco to another license holder, an existing process for other commercial species.
Section
4 applies additional phone reporting requirements for harvest of cisco. From October 1 through December 31,
commercial
licensees who have harvested 70 percent or more
of their individual licensee catch quotas for cisco must
submit a daily fishing report
to the department
. Daily fishing reports shall be submitted by calling a phone number provided by the department.
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 fishing in Wisconsin’s waters of Lake Superior.
7. Comparison with
S
imilar
R
ules
in Adjacent S
tates:
Minnesota and Ontario establish a
cisco
harvest
quota similar to
this
proposed rule. Michigan waters
,
under the Chippewa Ottawa Resource Authority
,
have a cl
osed season and other Michigan w
aters have a limitation
on the effort allowed, or the length of net and gear used to catch cisco
.
8. Summary of
Factual Data and Analytical M
ethodologies
Used and How Any Related Findings Support the Regulatory Approach C
hosen
:
Cisco have
been
harvested commercially in Wisconsin
waters of Lake Superior for decades
.
After a population decline in the 1960’s, a commercial fishery slowly grew over the next 30 years. Average annual s
tate-
licensed and tribal commercial harvest
between 2000 and 2007 was approximately 360,000 pounds of cisco. However, since 2008
the
c
ommercial harvest of cisco increased dramatically
because
commercial fish processors began accepting whole fish
and the market demand for cisco eggs, sold as caviar in Europe, skyrocketed. Average annual combined state and tribal harvest from 2008 through 2015 was approximatel
y 1.4 million pounds. For state-
licensed commercial fishers alone, the a
verage
annual
catch was
878,343
pounds of cisco.
Average Annual Harvest (Round Weight; State-licensed and tribal commercial harvest combined):
•
2000
– 2007: 359,341 lbs.
•
2008
– 2015: 1,376,520 lbs.
Actual Annual Harvest (Round Weight; State-licensed and tribal commercial harvest combined):
•
2014
: 1,107,923 lbs.
•
2015
: 1,552,169 lbs.
B
ased on the U
.
S
.
G
eological
S
urvey (USGS)
annual bottom trawl survey
, c
isco
numbers
have declined in Lake
Superior since 1990 (Figure 1)
. Similar declines have also been seen from repeated hydroacoustics
sampling in Wisconsin w
aters since 2006 (Figure 2).
By using data from both
catching and counting fish in
trawl surveys and
using sonar technology to detect the presence and abundance of fish in
hydroacoustics surveys, the department can determine a reliable assessment of the cisco population.
These
cisco population
declines are due to
sporadic
recruitment of cisco
(r
ecruitment means reaching a certain size or reproductive stage
)
,
a
nd there has not been a strong, above average
year class
or group of cisco
sinc
e 2003 (Figure 3).
The current commercial catch primarily consists of fish from the 1998, 2003, and 2009 year classes
. In
2014
surveys,
81% of the aged harvested fish
were from these three year
classes
.
However, the 1998 and 2003 year classes are contributing less to the fishery (62% of the commercial catch in 2011 and only 38% in 2014)
. The 2014 year class does appear to be equivalent to the 2009 year class, which should allow for sustained harvest. However, the sporadic nature of cisco recruitment and the potential for commercial markets to increase
- as was seen in 2008 -
necessitate the need for the establishment of a total allowable harvest
limit
.
In addition
, the importance of cisco to the ecosystem and
to
the commercial industry requires the ability to
frequently
review management
and harvest
to avoid changes that may cause further declines.
(See PDF for image)
Figure 1
.
U.S. Geological Survey spring bottom trawl estimated mean lake
-
wide
biomass for age-1 and older c
isco in Lake Superior (Source: 2015 USGS Compiled reports to the Great Lakes Fishery Commission of the Annual Bottom Trawl and Acoustics Surveys, 2015).
(See PDF for image)
Figure 2.
Estimated biomass of adult (> 10 inc
hes) female cisco in Wisconsin w
aters in the area between Bark Point and Sand Island
from hydroacoustics estimates
conducted by the USGS and WDNR
boats
.
(See PDF for image)
Figure 3.
U.S. Geological Survey spring bottom trawl estimated nearshore mean lake
-
wide
c
isco densities for age
-
1 in Lake Superior. (Source: 2015 USGS Compiled reports to the Great Lakes Fishery Commission of the Annual Bottom Trawl and Acoustics Surveys, 2015)
Between 1990 and 2005, Wisconsin’s cisco harvest (combined state and tribal) comprised roughly one third of the total Lake Superior cisco harvest across all jurisdictions. More recently, Wisconsin’s cisco harvest has risen to approximately two-thirds of the total Lake Superior
harvest.
Nearly 95% of the harvest in Wisconsin occurs during the cisco spawning season of October through December
.
Additionally,
the majority (approximately 90%) of the harvest
occurs
in the areas sampled in 2015 with
hydoracoustics
to develop biomass estimates.
The Apostle Island area provides appropriate spawning habitat for numerous fish species
and has higher densities of cisco during the spawning season than other areas of Lake Superior
.
The d
epartment is concerned
that an
increase in harvest
on this
spawning
population
of cisco
could have ramifications on the lake-wide cisco population
and is evaluating overall management options.
Members of the Great Lakes Fishery Commission Lake Superior Committee, neighboring states, and sport
fishing groups have
also
expressed concern about the impact of
current
unregulated cisco harvest in Wisconsin waters.
Currently in Lake Superior, lake trout are the only commercially harvested species that have a harvest limit/quota in place. Because the total and percentage of lake-wide harvest of cisco has increased in recent years, it is necessary to implement rule elements that distribute harvest fairly among stakeholders within Wisconsin and with o
ther states. Alternatively, cisc
o are vulnerable to overfishing if no harvest restriction is implemented, which could result in population declines for cisco and other popular fish species and negative consequences for small commercial fishing and charter businesses.
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
cisco
fishery over the long-term, an economic and natural resource benefit for all. The
emergency
rule may have a
small
economic impact in the Lake Superior region,
however the newly created harvest quota is set at a level above the average commercial harvest over the past several years.
The d
epartment met with the Lake Superior Commercial Fishing Board on three occasions
in spring and summer 2016
to discuss the potential rule. Productive dialogue led to the proposed strategy. This strategy
was
also
shared with the general public a
t
two
meetings
in June 2016. Consensus at
these meeting
s
was the need for precautionary management that sustains cisco populations and commercial profits for the long-term benefit of Lake Superior.
1
0
. Effect on
Small B
usiness
- I
nitial
Regulatory Flexibility Analysis
:
The rule will impact the harvest of
cisco
by state
fishers
, but while the emergency rule is in place it is likely that there will be no
reduction in overall harvest. The rules imposing harvest restrictions are necessary in order to ensure a sustainable
cisco
fishery over the long-term that provides an economic and natural resource benefit for all affected. If a
permanent rule is pursued, the d
epartment will conduct an economic impact analysis to gather comments from any individuals, businesses, local governments, or other entities that expect to be affected economically by the rule change.
Average state-licensed commercial fishers’ annual catch between 20
08
and 2015 was
878,343
pounds of cisco. In 2015, the cisco price per pound was $0.40-0.65, but has been as high as $1.20 per pound since 2012. While the price per pound has varied over time, estimated total value of the commercial cisco roe
(egg)
fishery is between $500,000 and $1,000,000 per year. Th
is rule’s
harvest
limit
s are expected to allow commercial fishers to harvest at or near the current average annual catch amount. Therefore, the ru
les may have minimal
economic impact on commercial fishing businesses.
Market demand,
fuel
,
and other variable expenditures would have a greater economic impact
than this rule
.
However, this rule and an upcoming permanent rule are important to have in place because they
will allow the d
epartment to reduce or increase the harvest limit based on assessment data and recommended harvest parameters.
Harvest reporting requirements included in th
is
rule
will enhance the information collected by the department to properly monitor the commercial harvest of cisco and ensure that harvest limits are not exceeded. In addition to
current bimonthly reporting requirement
s
, a
dditional daily phone reporting
is
required during the
Oct
ober to
December
cisco spawning season
after 70% of
the
individual
l
icensee
quota
allotment is reached
. The combination of bimonthly reports and daily phone reports
will
allow for tracking of overall and individual allotments of the harvest limits with up to date records during the time of year with the majority of harvest.
Minimal
to no
impact is expected for
recreational fishers or for
businesses or business associations that do not rely on harvest of
cisco.
11
. A
gency Contact
P
erson:
Todd Kalish
WI Department of Natural Resources
PO Box
7921
Madison, WI 53707-7921
608-
266-5285
12
. Place where comments are to be submitted and deadline for submission:
Hearing dates and the comment submission deadline
will occur within 45 days after the emergency rule is in effect
.
Section
1
NR
25.06 (1
)(
c
)
is created
to read:
NR 25.06 Quotas and catch fees. (1)
Lake Superior
.
(c
)
Lake herring
(Cisco
)
.
The total allowable annual harvest of
cisco
b
y state
fishers
during the open season in Wisconsin
waters of Lake Superior shall not exceed
7.5
percent
of the total
of the most recent hydroacoustic
s
cisco
biomass estimate, expressed in
round weight pounds of cisco, as determined by the department.
NR 25.06(1)(a)1.
1.
The total allowable
state
h
arvest in the waters of Lake Superior
may not exceed
1,497,900
round weight pounds in a calendar year.
2
.
From October 1 through December 31 of each year, the total harvest of cisco
by state licensed commercial fishers using gill nets with a mesh size of not less than 2 3/8 inch and not more than 3 inch stretch measure
may not exceed 1,317,900
round
weight
pounds
.
3.
Excluding harvest under subd. 2, f
rom January 1 through December 31 of each year, the total harvest of cisco by state
fishers
and the department shall not exceed 180,000 round weight pounds.
The department shall subdivide the allocation of 180,000 round weight pounds among commercial
incidental catch
, recreational
angling
, and department assessment activities.
Section
2
NR 25.07
(1)
(b) is
created to read:
NR 25.07 Individual licensee catch quotas. (1)
Lake Superior
.
(b)
Lake herring
(Cisco).
1. Each
state
commercial
license
shall
be allotted an
equal
individual licensee catch quota
of the
total allowable
annual cisco harvest quota established under s.
NR 25.06
(1)
(c)
.
Section
3
NR 2
5.08 (intro.
) is amended to read:
NR 25.08 Transfer of individual licensee catch quotas.
Individual
licensee catch quotas allotted under s.
NR 25.07
(1) (a)
or
(b)
or
(2) (am) 1.
,
(b)
,
(
bg
)
,
(
br
)
,
(c)
,
(d)
,
(e)
or
(f)
may be transferred
by the licensee receiving the quota allocation to another
valid licensee authorized to engage in commercial fishing in the
waters to which the quota applies, who meets all criteria for
receiving such a quota other than previous fishing history, subject
to the conditions stated in this section.
Section
4
NR 25.13 (1) (d) is created to read:
NR 25.13 (1)
(d)
In addition to reporting requirements under
this
sub
section,
each person required to be licensed under s.
29.519 (1m)
, Stats., to conduct commercial fishing operations on Lake Superior
and who has received an individual licensee catch quota under s.
NR 25.07
(1)
(b)
for the harvest of lake herring (cisco) shall submit a daily fishing report
to the department
from October 1 to December 31
after
70 percent
of
the individual licensee catch quota
has been reached
that includes all records of pounds of lake herring harvest, harvest effort, and all other information called for on the report form.
Daily fishing reports shall be submitted by calling a phone number provided by the department.
Section
5
. Statement of Emergency.
In order to preserve the welfare of state-licensed commercial fishers,
Chippewa
tribal commercial fishers, recreational fishers, and associated businesses, as well as the welfare a
nd sustainability of the
lake herring
(cisco
) population in Lake Superior, the department finds that an emergency rule is necessary to implement rule changes for
lake herring
(cisco
)
harvest.
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
August 3, 2016
.
