The proposed rule has two parts. The first is a set of phosphorus water quality standards criteria for rivers, streams, various types of lakes, reservoirs and Great Lakes. The second is procedures for determining and incorporating phosphorus water quality based effluent limitations into Wisconsin Discharge Pollutant Elimination System (WPDES) permits under chapter 283, Stats. Pursuant to
40 CFR 131.11, states are required to adopt water quality standards criteria that are protective of the designated uses of surface waters. Pursuant to section 303(c)(4) of the Clean Water Act, EPA may step in and promulgate the criteria for the state, if the state does not. Development of point source permit procedures is required as part of the state's point source permit delegation agreement. EPA approval of state water quality criteria is required under
40 CFR ss. 131.5,
131.6 and
131.21.
Phosphorus Water Quality Standards Criteria
The proposed rule establishes phosphorus water quality criteria of 100 ug/l (parts per billion) for rivers specifically identified in the rule and of 75 ug/l for smaller streams and rivers. No criteria are proposed at this time for ephemeral streams or streams identified in ch.
NR 104, Wis. Adm. Code as limited aquatic life waters. Both of the criteria are intended to prevent in-stream algae and other plant growth to the extent that is detrimental to fish and aquatic life. For example, extensive algae or macrophyte (large plants growing on the beds of streams) consume oxygen during the night to the extent that may leave too little oxygen for certain fish species and for certain aquatic insects. About half of Wisconsin's rivers and streams meet the proposed criteria.
For lakes and reservoirs, the proposed rule has a suite of criteria for five different types of lake ranging from 15 ug/l for lakes supporting a coldwater fishery, such as lake trout or cisco in its bottom waters, to 40 ug/l for shallow drainage lakes and reservoirs. The criteria are intended to prevent or minimize nuisance algal blooms; prevent shifts in plant species in shallow lakes; maintain adequate dissolved oxygen in the bottom of “two-story" lakes with a warmwater fishery in top waters and coldwater fisheries in bottom waters; and to maintain fisheries. “Toxic" algae concerns may also be addressed. For millponds and similar impoundments, the upstream river or stream criteria would apply. More than half of Wisconsin's lakes meet the proposed criteria with the percent varying by lake type. No criteria are proposed at this time for marsh lakes and other wetlands since they will be part of future wetlands nutrient criteria adoption.
For the Great Lakes, phosphorus criteria are proposed for the open waters of Lake Superior (5 ug/l), the open waters of Lake Michigan (7 ug/l) and the nearshore waters of Lake Michigan (7 ug/l). Presently, for the open waters both Lake Michigan and Lake Superior are meeting the criteria. For the nearshore waters of Lake Michigan, the zone from the beaches to a depth of 10 meters, where there are concerns with the Cladophora algal mats forming on beaches, the criteria may be exceeded in some locations.
Below is a table showing the proposed phosphorus water quality standards criteria by type of water body. The specific water body types are defined in the proposed rules, and there are some exclusions based on size or flow conditions.
Proposed Phosphorus Criteria by Type of Water Body
|
Total Phosphorus in ug/l
|
Listed rivers
|
100
|
All other streams
|
75
|
Stratified reservoirs
|
30
|
Non-stratified reservoirs
|
40
|
Stratified “two-story" fishery lakes
|
15
|
Stratified drainage lakes
|
30
|
Non-stratified (shallow)
drainage lakes
|
40
|
Stratified seepage lakes
|
20
|
Non-stratified (shallow) lakes
|
40
|
Impoundments
|
Same as inflowing river or stream
|
Lake Michigan open and
nearshore waters
|
7
|
Lake Superior open and
nearshore waters
|
5
|
WPDES Effluent Standards and Limitations
The current regulations for phosphorus establish specific procedures for including technology based limitations and standards in WPDES permits (existing chapter NR 217). There is also an existing rule (s.
NR 102.06) that generally states the department may establish water quality based limits for phosphorus in permits on a case-by-case basis using an evaluation of phosphorus sources in a watershed, but this rule is being repealed and replaced with a proposed new subchapter in chapter NR 217 that includes detailed procedures for establishing water quality effluent limitations for phosphorus.
Specifically, there are provisions for determining when a water quality based effluent limitation is needed in a WPDES permit; equations and procedures for calculating effluent limits based on different types of waters and stream flow assumptions; and provisions for expressing permit compliance averaging periods, such as a monthly average. The rule requires concentration limits, as commonly used in permits. However, it also specifies where and how mass limits are required, such as for discharges to impaired waters, where there is a downstream lake and where there is a downstream outstanding or exceptional resource water. The rule also addresses the relationship and procedures for including a various types of phosphorus limits in permits such as a phosphorus limit based on a total maximum daily load, a technology based phosphorus limit and a water quality based phosphorus limit calculated under the new procedures in chapter NR 217.
The proposed rule allows the department to include compliance schedules in permits. The compliance schedule provisions specify factors the department may consider when establishing the length of a compliance schedule. One of the options for a compliance schedule provision for discharges to nonpoint source dominated waters includes an adaptive management option where interim limits may be phased in, if phosphorus concentrations improve in the receiving water.
There are also provisions for a streamlined approach for processing variances for stabilization pond and lagoon systems that mimic the procedures for ammonia variances in ch.
NR 106. These special provisions are based on the knowledge that presently there are few means to control phosphorus being discharged from these systems and that the construction of a mechanical plant is not affordable for smaller municipalities. The inclusion of streamlined procedures for stabilization pond and lagoon systems should not be interpreted to mean that these are the only systems that may obtain a variance, where appropriate. There are standard procedures for variances in statutory language and other administrative codes.
Comparison with federal regulations
The proposed phosphorus criteria for streams of 75 ug/l and rivers of 100 ug/l are similar to EPA's guidance values for the southern half of Wisconsin. EPA recommended 70 ug/l of phosphorus for both rivers and streams in the southwestern driftless area of the state and 80 ug/l of phosphorus for both rivers and streams in the remainder of the southern half of the state. EPA, did however, recommend a criterion of 29 ug/l for a band or area stretching west to east though the middle of the state and 10 ug/l for the forested northern part of the state. All of the EPA guidance numbers are based on the 25th percentile of available data from a number of states and do not represent a cause-effect situation. We could not find concentrations as low at 10 ug/l even for pristine conditions in most of the forested northern portion of Wisconsin.
For lakes, the proposed criteria that range from 15 to 40 ug/l based on the type of lake are different than EPA's guidance values that range from 9.7 ug/l for northern lakes to 36 ug/l for driftless area lakes. EPA's guidance values are based on data from multiple states and represent the 25th percentile of available data. They do not differentiate based on the type of lake.
The proposed criteria for Lake Michigan and Lake Superior are the same as the values derived for the federal Great Lakes Water Quality Agreement.
The proposed WPDES permit procedures, including water quality based effluent limitations, are based on general EPA regulations and guidelines.
Comparison with rules in adjacent states
All states, including adjacent states, are required by EPA to promulgate nutrient water quality standards criteria under EPA's Clean Water Act authority. In addition, all states delegated National Pollutant Discharge Elimination System permit authority by EPA, including all adjacent states, are required to issue point source permits that will meet water quality standards.
To date, Minnesota has promulgated phosphorus criteria for lakes which are very similar to what is proposed in this rule. Minnesota is now in the process of developing proposed criteria for rivers and streams. Illinois has had phosphorus criteria for lakes and Lake Michigan in its water quality standards for some years, but is in the process of developing phosphorus criteria for streams and rivers. Michigan and Iowa are developing criteria, but to date have not publicly proposed criteria. None of the adjacent states or Wisconsin has proposed criteria for nitrogen, except for ammonia.
All adjacent states have provisions for developing water quality based effluent limits, but none to date have proposed rules that specifically deal with the issues uniquely related to phosphorus.
Summary of factual data and analytical methodologies
The proposed water quality standards phosphorus criteria for streams and rivers are based on results of a number of Wisconsin studies aimed at determining when biotic effects occur and how these effects relate to protection of designated uses. The primary studies were jointly conducted by department and USGS staff and their results are reported in “Nutrient Concentrations and Their Relations to the Biotic Integrity of Wadeable Streams in Wisconsin", USGS Professional Paper 1722, by Robertson, Graczyk, Garrison, Wang, LaLiberte and Bannerman, 2006; and “Nutrient Concentrations and Their Relations to the Biotic Integrity of Nonwadeable Rivers in Wisconsin", USGS Professional Paper 1754, by Robertson, Weigel and Graczyk, 2008. These studies identified a suite of breakpoints or thresholds for effects of phosphorus on algae, aquatic insects and fish. Based on discussions involving a number of experts in the scientific field, the department used an averaging method of the suite of breakpoints to derive the proposed criteria. These proposed criteria were compared to Department studies of trout streams in southwestern Wisconsin, the early 1980's Department study of phosphorus in streams and studies cited in EPA's “Nutrient Criteria Technical Guidance Manual: Rivers and Streams", EPA-822-B-00-002, 2000.
The proposed water quality standards phosphorus criteria for lakes and reservoirs are based on methods commonly used for decades in lake management in Wisconsin and adjacent states. Specifically, for most types of lakes, the proposed criteria are based on limiting the risk of nuisance algae conditions (20 ug/l chlorophyll a) to no more than 5 percent of the time (e.g. less than one week per year from June though September) using work by Walmsley (Journal of Environmental Quality, 13:97-104, 1988) and Heiskary and Wilson (“Minnesota Lake Water Quality Assessment Report: Developing Nutrient Criteria", Minnesota Pollution Control Agency, September 2005). These concentrations were also determined to be sufficient to protect sport fisheries in lakes again using information from Heiskary and Wilson (“Minnesota Lake Water Quality Assessment Report: Developing Nutrient Criteria", Minnesota Pollution Control Agency, September 2005). For the relatively few lakes that support a cold water fishery in the lower waters, the department's objective was to maintain 6 mg/l for dissolved oxygen in the lower waters. To determine the appropriate phosphorus concentrations, the Department examined sediment cores and current water concentrations to determine undisturbed conditions. The proposed criteria were compared to literature information summarized in EPA's “Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs", EPA-822-B-00-001, 2000.
For development of the water quality based effluent limitation procedures for permits, the department reviewed existing state and federal regulations and guidance for the point source discharge permit programs, consulted with EPA representatives, and received input from a technical advisory committee that met several times in 2008 through 2009. The technical advisory committee was comprised of representatives of municipal and industrial wastewater dischargers, municipal storm water dischargers, agricultural interests, water user groups and environmental groups. Staff from EPA and USGS also attended committee meetings as advisories to the committee and the Department.
Analysis and supporting documents used to determine effect on small business
The Department initially identified cheese and other dairy operations that discharge wastewater containing phosphorus to lakes and streams as small businesses potentially impacted by the proposed rules. With the assistance of the Wisconsin Cheese Makers, 11 businesses were identified for analysis. All 11 are likely to have more than $5 million in annual revenue, but may have less than 25 employees. Of the 11, six apply wastes to the land through a variety of methods. Some may discharge non-contact cooling water without adding additives, which would not come under this rule. The other six discharge their wastes to municipal wastewater treatment plants.
Based on this analysis, the Department concluded that there are few, if any, small businesses that directly discharge of wastewater containing phosphorus to lakes or streams. If there is an effect, it would likely be an indirect affect on those small businesses that discharge their wastes to a municipal wastewater treatment facility. If the municipal wastewater treatment plant is required to further remove phosphorus, it is possible that the service fee may increase or the municipality may require some level of pretreatment.
Small Business Impact
The department has determined the rule will not have a significant impact on small businesses. Most of the fiscal impacts from the proposed rules will affect municipalities and industries (with phosphorus discharges to surface waters) that aren't considered small businesses. The rule may have an effect on a few small businesses, but it is very difficult to estimate. As mentioned above, small cheese factories may be the best example. For those meeting the definition of a small business, many of the facilities land apply all or the majority of their wastewater, and therefore will not be impacted by these rules. If there are any businesses that discharge wastes directly to surface waters that meet the definition of a small business, they may apply for a variance if compliance with water quality based effluent limits for phosphorus would cause significant economic hardship. The proposed rules do not provide for less stringent reporting, longer compliance schedules or completed exemptions for small businesses with phosphorus discharges to surface waters because it would not be allowed under federal regulations or state statutes. There is, however, a variance procedure which is allowed under both state and federal law for all point sources that qualify. Reporting and record keeping requirements are established through permit terms and conditions.
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code.
Fiscal Estimate
State fiscal effect
Increase costs — may be possible to absorb within agency's budget.
This rule package has no impact on state revenues; however, the Department would incur costs associated with WPDES permits to implement the provisions of the rule package. An ongoing workload equivalent to about 2.0 FTE statewide is projected for at least five to ten years. Wastewater engineer positions will develop effluent limitations, including consideration of TMDL wasteload allocations, review of variance requests, development of compliance schedules, etc. The workload estimate is based on 100 permits per year at about 40 hours per permit with five years to complete an initial cycle of permit reissuances. Salary and fringe costs are estimated at $220,000 per year (4,000 hours x $35hour salary + 48.59% fringe+ travel and supplies).
Fund sources affected
GPR.
Affected Ch.
20 appropriations
Local government fiscal impact
Increase costs.
The proposed rule package will result in compliance costs for a number of municipal and other publicly owned wastewater treatment facilities. These costs may be in the form of capital expenditures, increased operation and maintenance costs, or both, and will vary considerably by municipality or sanitary district. For some facilities, no additional costs will be needed since they discharge to streams and rivers and already meet the phosphorus criteria. For up to an estimated 163 facilities, the addition of filtrations processes may be needed and a substantial cost could be incurred. The Department estimates that municipalities and sanitary districts will incur costs of between $300 million and $1.13 billion to comply with the provisions in the rule package. Costs per unit of phosphorus removed are much lower for larger facilities than for smaller facilities. Furthermore, it should be noted that the estimated cost range does not take into account the possibility that some municipalities and sanitary districts may need to acquire land for locating additional wastewater treatment facilities, and thus incur the corresponding land acquisition costs.
There are a number of factors that could push the costs toward the low end of the range, or even lower. These mitigating factors include nonpoint source control that lessen the need for point source control of phosphorus either in general or through implementation of TMDLs. Other factors include economic variances that limit the degree of control to affordable levels, emerging technology that may lower costs, and pollutant trading. The low end of the range may also be overstated to the extent that facilities have already upgraded their treatment plants and/or treatment processes and have thus already incurred some of the costs.
Types of local governmental units affected
Towns, Villages, Cities, Sanitary districts.
Private sector fiscal impact
The proposed rule package will result in compliance costs for a number of industrial wastewater facilities. These costs may be in the form of capital expenditures, increased operation and maintenance costs, or both. The paper industry and the food processing industry would be most affected. The Department estimates that up to 35 facilities could have stringent effluent limitations. Those discharging wastes to municipal wastewater treatment plants may also face increased service fees. Similar to local governmental entities, there is a great degree of variability in the costs that would be incurred. The Department estimates the cost range to be between $80 million and $440 million. The same mitigating factors described above for local governmental entities will push costs toward the lower end of the range for private sector facilities.
Long-range fiscal implications
The fiscal impact on local governments and industries will likely be spread over a 10 to 20 year period with less costly interim limitations being imposed in the initial five to ten years and the more stringent limits being phased in primarily in the 10 to 20 year period.
Agency Contact Person
Jim Baumann
Department of Natural Resources
P. O. Box 7921
Madison, WI 53707-7921
Phone: (608) 266-9277
Notice of Hearing
Natural Resources
Environmental Protection — Water Regulation, Chs. NR 300—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.16 and
227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on emergency rules and proposed permanent rules revising Chapters
NR 335 and
336, relating to implementation of the Municipal Dam Grant Program and the Dam Removal Grant Program.
The proposed revisions relate to providing grants for dam safety projects for municipally owned dams, grants for any dam owner to removal a dam they no longer want to maintain and any person to removal an abandoned dam as provided under s.
31.385, Stats.
Hearing Information
Date and Time Location
April 15, 2010 WI DNR Building (GEF 2)
Thursday Room 413
at 1:30 PM 101 S. Webster Street
Madison, WI
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Eileen Trainor in writing at the Department of Natural Resources, Bureau of Community Financial Assistance (CF/2), 101 S Webster, Madison, WI 53707; by E-mail to
eileen.trainor@wisconsin.gov ; or by calling (608) 267-0848. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Copies of the Emergency Rule, Proposed Permanent Rule and Fiscal Estimate
The emergency rule, proposed permanent rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link provided on the Municipal Dam Grant Website at
http://dnr.wi.gov/org/caer/cfa/Grants/dammaint. html. If you do not have Internet access, a printed copy of the emergency rule, proposed permanent rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Eileen Trainor, Department of Natural Resources, Bureau of Community Financial Assistance (CF/2), 101 S. Webster St, Madison, WI, 53703, or by calling 608.267.0848.
Submission of Written Comments
Comments on the proposed rule must be received on or before Friday, April 16, 2010. Written comments may be submitted by U.S. mail, fax, or E-mail and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Meg Galloway
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone: (608) 266-7014
Fax: 608.267.2800
Analysis Prepared by Department of Natural Resources
Statute interpreted
Statutory authority
Explanation of agency authority
Section
227.11 (2) (a), Stats., gives state agencies general rule-making authority. Section
31.385 (1m), Stats., directs the department to promulgate rules to administer a financial assistance program for dam safety projects and s.
31.385 (4), Stats., directs the department to promulgate rules to establish a dam grant inventory and notice and hearing procedure to place dams on the inventory. The rules must provide grants to municipalities and Lake Districts for maintenance, repair, reconstruction, and removal of dams, to private dam owners for the removal of their dams and any person for the removal of abandoned dams.
Related statute or rule
These rules assist the department in achieving the statutory goals of Chapter
31, Stats., which vests the Department with the responsibility to regulate dams and promote safety and protect life and property from unsafe dams. The grant programs provide funding to dam owners to address safety deficiencies at dams. There are no other similar rules that address these issues.
Plain language analysis
The objectives of the revisions to ch.
NR 335 and ch.
NR 336 are to implement changes to enabling legislation. The rule changes can be divided into two broad categories:
•
Incorporate statutory changes into the existing grant codes:
⍽ increases the maximum level of state contribution allowed under the grant programs from $200,000 to $400,000
