ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to amend NR 102.01 (1) and 102.06 (7); and to create NR 119 relating to the development of site-specific numeric phosphorus water quality criteria for surface waters.
Analysis Prepared by the Department of Natural Resources
1-3. Statutory Authority, Statutes Interpreted, and Explanation of Agency Authority:
Section 281.15, Stats., provides the authority for the Department of Natural Resources to promulgate by rule water quality standards for surface waters or portions of surface waters in the state. Pursuant to s. 281.15, Stats., water quality standards are comprised of designated uses and criteria. The Department has promulgated designated uses and criteria for various pollutants and parameters in chs. NR 102 through 105, Wis. Adm. Code. The criteria for phosphorus that were approved by USEPA are promulgated in s. NR 102.06, Wis. Adm. Code. In s. NR 102.06(7), Wis. Adm. Code, the Department recognized that it may be appropriate to promulgate site-specific criteria (SSC) for phosphorus for some surface water segments. These proposed rules will establish detailed procedures and a methodology for developing SSC for a waterbody or portion thereof under s. 281.15, Stats., and allow for more timely revisions as appropriate for individual waterbodies. The proposed rules will also ensure that the requirement in s. 281.15(2)(c), Stats., is met in specific waterbodies or segments. Namely, that proposed rules will help ensure that criteria protect a waterbody’s designated uses but are no more stringent than reasonably necessary to assure attainment of the designated use of a waterbody. 4. Related Statutes or Rules: Wisconsin’s statewide phosphorus criteria are established in s. NR 102.06. As described above, s. NR 102.06(7), Wis. Adm. Code, recognizes that site-specific phosphorus criteria may be necessary for certain waterbodies. However, this section does not contain an explanation of how such SSC are to be developed. These proposed rules will establish detailed methodology for developing phosphorus SSC. The proposed rules also reference another rule package currently in progress. Rule package WY-23-13 creates Biocriteria (a new subchapter III in ch. NR 102) and Phosphorus Response Indicators (new s. NR 102.07). Eligibility for an SSC in this proposed rule package is in part dependent on whether a waterbody is attaining its phosphorus response indicators and biocriteria, and an SSC must be set at a concentration that will support both. Because these rule packages work in tandem and cross-reference one another, they are moving simultaneously through the rulemaking process.
Additionally, there is currently a rule package underway proposing phosphorus SSC for three specific waterbodies within the Wisconsin River Basin (WY-09-18). These SSC are being routed separately because they are time-sensitive due to inclusion in a basin with a Total Maximum Daily Load (TMDL) analysis for phosphorus. However, the intent of this rule package (WT-17-12) is to promulgate a standard process that provides a more streamlined path to SSC that would not always require rulemaking for individual waterbodies, but would still allow for rulemaking in cases where requested.
5. Plain Language Analysis: The existing policy for deriving phosphorus SSC is found in s. NR 102.06(7), Wis. Adm. Code, which recognizes that the Department can promulgate by rule phosphorus site-specific criteria. The proposed rule, ch. NR 119, is not a change from past policy, but rather establishes a methodology and process for establishing SSC. Instead of requiring the promulgation of individual numeric phosphorus SSC in separate rule packages, the Department is proposing to promulgate the methodology and a streamlined process for determining an SSC. SSC may be appropriate when the statewide phosphorus criteria are either over- or under-protective of Wisconsin’s waters in a given water segment. The existing statewide phosphorus criteria are sufficiently protective in most cases. However, there are instances where the applicable phosphorus criteria under s. NR 102.06, Wis. Adm. Code, need to be adjusted to ensure that the applicable designated uses (such as recreation and aquatic life) are being reasonably protected. If designated uses are not being supported by the statewide criterion, a more stringent SSC may be necessary. In cases where a statewide criterion is more stringent than reasonably necessary to protect the designated uses of the waterbody, a less stringent SSC would likely be warranted. Deriving SSC for these waters may alter WPDES permit limits for point source discharges at or upstream of these specific surface water segments.
This rule specifies the scientifically defensible methods required to derive phosphorus SSC. This rule also identifies the process DNR staff and interested parties should follow to derive phosphorus SSC and participate in SSC decisions. The process includes public participation opportunities and review by the Environmental Protection Agency (EPA). If this rulemaking were not completed, SSC could still be derived for phosphorus. However, expectations would not be clearly defined, which may result in inconsistencies and added complexity for those developing SSC. Additionally, this rule will streamline the SSC process for DNR and the public by promulgating the procedure and methodology for deriving an SSC rather than promulgating each individual SSC by rule. Although the proposed rule does not require rulemaking for each SSC, it does allow for rulemaking on individual SSC when requested by the public.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The Federal water quality standards regulation at 40 CFR 131.11(b)(1)(ii) provides states with the opportunity to adopt water quality criteria that are “modified to reflect site-specific conditions.” Wisconsin has used this authority, as well as the authority under s. 281.15, Stats., to promulgate the existing narrative phosphorus site-specific criteria language in s. NR 102.06(7), Wis. Adm. Code. The portions of 40 CFR 131 related to establishing water quality standards include:
40 CFR 131 Subparts A-C: Requirements for establishing state water quality standards.
40 CFR s. 131.4: States are responsible for establishing and revising water quality standards. U.S. EPA approves or disapproves standards under 40 CFR s. 131.5.
40 CFR 131.6: Water quality standards consist of designated uses and criteria to protect the designated uses.
40 CFR 131.11: States must adopt water quality criteria that protect designated uses. For waters with multiple uses, the criteria must protect the most sensitive use. 40 CFR 131.11(b)(1)(ii) authorizes states to adopt numeric water quality criteria that are “modified to reflect site-specific conditions.”
40 CFR 131.20: Revision of state water quality standards is subject to public participation procedures and U.S. EPA review and approval under 40 CFR 131.20.
Wisconsin has authority under s. 281.15, Stats., to promulgate and revise water quality standards. Promulgation of site-specific criteria methodology would provide consistency with the federal regulations in 40 CFR 131.6 and 131.11 that require that criteria be based on protecting the designated uses of a waterbody.
7. Comparison with Similar Rules in Adjacent States:
Iowa, Indiana, Michigan and Ohio do not have statewide numeric phosphorus criteria. However, Michigan widely applies a method to derive appropriate site-specific phosphorus targets for waterbodies in the state. Ohio has a longstanding approach for developing site-specific phosphorus targets using a weight of evidence approach based on several eutrophication indicators. The targets set by Michigan and Ohio are applied in TMDLs and permits.
Illinois has adopted partial phosphorus criteria for lakes and reservoirs. Illinois does not have provisions for site-specific criteria.
Minnesota has adopted phosphorus criteria for lakes, reservoirs, rivers and streams. Minnesota allows specific water quality standards, referred to as SSC in Wisconsin, to be adopted when appropriate if information is available to derive standards based on a waterbody’s specific characteristics. This process is outlined in Minn. R. 7050.0220 and 7050.0222. Site-specific standards must maintain and protect a waterbody’s beneficial uses. Several site-specific phosphorus criteria have been approved in Minnesota.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
This rule is largely procedural in nature. The Department worked with U.S. EPA and Department water quality standards staff and attorneys to determine the type of information and data necessary to develop an SSC that would be approvable under state and federal regulations. The Department worked with these parties and an external stakeholder committee to develop a process for submittal and review of that information.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Because this rule simply clarifies and documents a process for conducting a review already expressly allowed by state statutes and recognized in existing code, the creation of this rule is not expected to incur costs. The processes outlined in this rule are similar to those that the Department has followed under the existing rule, NR 102.06(7) and s. 281.15, Stats. The Department recognizes that during the SSC development process, a person requesting an SSC is likely to incur some costs for monitoring or modeling, but it is their choice whether to request an SSC and incur those costs. Also, by specifying the type of demonstration that needs to be made to support an SSC, the rule may save requestors costs and time by streamlining their study design and reducing the time needed for SSC approval. Once an SSC is developed for a waterbody, there may be alterations to WPDES (Wisconsin Pollutant Discharge Elimination System) permit limits for point source discharges at, or upstream of, these specific surface water segments. However, these are no different from any adjustments that would happen under SSC developed following the rulemaking process.
This process is expected to be applicable to a relatively small proportion of waterbodies. However, the number of waterbodies in the state that may be eligible for SSC, or for which the permittees or other entities would be interested in pursuing an SSC, is unknown.
10. Effect on Small Business (initial regulatory flexibility analysis): As discussed above, this rule is not expected to incur costs other than those that would be incurred under the existing rule.
11. Agency Contact Person:
Kristi Minahan, Wisconsin Department of Natural Resources, Bureau of Water Quality WY/3, P.O. Box 7921, Madison, WI 53707-7921; Kristi.Minahan@Wisconsin.gov; 608-266-7055
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Department of Natural Resources
Bureau of Water Quality – WY/3
PO Box 7921
Madison WI 53707