Lakes: There are 161 lakes that have phosphorus data and also have data for the three main phosphorus response indicators: frequency of moderate algal levels (to protect recreation use), chlorophyll a concentration (to protect aquatic life use), and the plant phosphorus response tool (aquatic life). Of these 161 lakes, 28 exceed the phosphorus criterion but are within the phosphorus range at which the combined approach can be applied. Eight of those lakes attain all three phosphorus response indicators and would therefore be removed from the impaired waters list for phosphorus or would not be listed for phosphorus when they otherwise would have been.
EIA Comments on Ch. NR 119: Establishment of a process for developing site-specific criteria for phosphorus
F.
SSC: Support
Comment: TNC [The Nature Conservancy] thanks and applauds the Department of Natural Resources for its continuing excellent work on collecting credible data to make informed decisions on specific bodies of water. TNC shares the Department’s view that further study in this regard will have minimal economic impact. The data currently collected by DNR, whether on oxygen, algae, insects, or aquatic plants is crucial to determining existing phosphorus concentrations are reasonable for the specific site in question.
DNR Response: Thank you for expressing your support of our efforts.
G.
SSC: Application of narrative biocriteria to SSC
Comment: The EIA states that this rule “simply clarifies and documents a process for conducting a review already” found in statute and administrative rule. However, the changes proposed in WY-23-13 would be incorporated into these SSC determinations, including the narrative biocriteria analysis and phosphorous indicators. A shift from numeric biocriteria to a narrative approach will fundamentally alter impairment and SSC determinations. There will be cost impacts associated with a changed process, and those costs must be evaluated in the EIA. The EIA should evaluate increased cost of sampling, testing, and demonstrating compliance with a more ambiguous standard based on multiple variables that may change every two years. This should include the cost to both the state and the regulated community.
DNR Response: No change to EIA. We disagree that using narrative versus numeric biocriteria will fundamentally alter the SSC process or determinations, or the overall costs associated with developing an SSC. The process remains very similar regardless of whether the biocriteria are narrative or numeric, or whether non-codified biological metrics are used as the basis of the analysis. In all cases, monitoring and/or modeling would be required to make a demonstration that a certain level of phosphorus is protective of designated uses. The thresholds associated with any of the biological metrics do not affect the costs for monitoring, modeling, or analysis.
H.
SSC: Cost of compliance with more-stringent SSC
Comment: EIAs should also include an analysis of costs for a permit holder to comply in cases where the SSC is more stringent based on the adoption of this narrative approach and discuss potential cost benefits to those who are eligible for a less restrictive SSC. Under this proposed rule, a waterbody or segment of the waterbody may be eligible for a more stringent SSC even if they attain the statewide phosphorous standard. The new authority for reviewing these response indicators, found in WY-23-13, creates a new opportunity to waterbodies to be eligible for a more stringent SSC, and the Department must have some understanding of the magnitude of stricter SSCs under this approach, as well as the cost of those. A finding that a water body requires an SSC that is more stringent can result in tens of millions of dollars in compliance costs that are not accounted for in this EIA.
DNR Response: No change to EIA. This rule does not create a new opportunity or new authority for more-stringent SSC. SSC can be created for any pollutant under state statutory authority (s. 281.15 Wis. Stat.; also see s. NR 102.06(7) for phosphorus). Under these provisions, SSC may be either more or less stringent as the case requires to protect designated uses of the waterbody. Furthermore, the establishment of biological metrics, whether in code (numeric or narrative) or in guidance, does not create a new opportunity/authority; any such metric that is an appropriate measure of a waterbody’s designated use can be used as the basis for an SSC, whether specified in code/guidance or not.
We have always acknowledged that where a more-stringent SSC is approved, there may be compliance costs for facilities. However, this would be the case whether the SSC were developed under this process or using another process if this rule were not established. Establishment of this process does not create costs, it provides information regarding the data needed to support a request for an SSC. Any costs for a proposed SSC would be addressed during the rulemaking or equivalent process for the proposed SSC (example: Wisconsin River Basin phosphorus SSC, rule package WY-09-18).
I.
SSC: Cost of developing a less-stringent SSC
Comment: Often the only economically feasible option for a WPDES permit holder is to request an SSC that is less stringent than the applicable standard. If a permit holder cannot comply absent an SSC request, the request is not in fact voluntary. Therefore, to characterize the costs associated with SSC development as voluntary does not negate the requirement to analyze the cost. The EIAs must evaluate the process cost as well as the impact on compliance cost.
DNR Response: No change to EIA. SSC are not a compliance tool for permittees. They are a water quality standard set to protect the water quality needed for a waterbody to support aquatic life, recreation, and other designated uses. While an SSC may be proposed by any party, it is not an obligation of a permittee to request an SSC. The department has developed compliance tools for phosphorus such as water quality trading and adaptive management, but SSC is not a compliance tool. Also, if a permittee cannot comply with permit limits because it will cause economic hardship, the appropriate avenue is to request a variance, either individual or multi-discharger. Such a variance might provide a longer time frame under which an SSC or TMDL could be developed. Further, if a permittee decides to propose an SSC, the cost to do so under existing statutory authority is not different from the cost to do so under the process proposed here.
J.
SSC: Antidegradation/Antibacksliding
Comment: One commenter expressed concern that although SSC could be favorable for dischargers, the department’s antidegradation protocols could prevent permittees from realizing the benefits that a less-stringent SSC may provide if the SSC took place after they had reached compliance with phosphorus permit limits based on the statewide P criterion. The timing of the WPDES permit requirement for compliance with the statewide standard for phosphorous could precede an SSC or TMDL for the waterway that the plant discharges into, resulting in additional costs for phosphorous removal that may not be needed to meet environmental goals. The commenter cited similar concerns with phosphorus TMDLs which may allow higher wasteload allocations for permittees, but which would only be beneficial to the permittee if the TMDL is completed prior to the deadline established in the WPDES permit for phosphorous removal. The commenter provided an example of the City of Brookfield, which will be installing additional treatment technology but could substantially decrease the amount of chemical added to precipitate phosphorus to meet these potentially different limits (statewide criterion vs. SSC or TMDL).
DNR Response: No change to EIA. This comment essentially addresses the economic impacts of other federal and state requirements. The requirements for antidegradation and antibacksliding are federal requirements under the Clean Water Act section 402(o) and 303(d)(4) and at 40 CFR sec. 122.44(l). Some ways to work within the antibacksliding and antidegradation requirements include:
If a discharger cannot meet its permit limits within the normal compliance deadlines, it may apply for either an individual variance or the multi-discharger phosphorus variance. This extends the compliance timeline and provides some additional time for development of an SSC or TMDL.
There are certain situations where a discharger can make a demonstration that a relaxed permit limit fits within the antibacksliding and antidegradation requirements, if the circumstances meet requirements in ch. NR 207, Wis. Adm. Code.
K.
SSC: Sampling requirements for benthic algae in streams
Comment: The department should add more specific sampling site selection requirements to the benthic algal assessment protocols (viewing bucket method) used as a phosphorus response indicator and as part of the SSC process. It is important that sufficient detail is included such that intentional or unintentional bias does not occur in selection of study sites. The ability of flowing water to support primary production is dependent on several things in addition to nutrients in the water column, including suitable substrate and canopy cover. Given this situation it is possible to select study sites to either selectively show impact (suitable substrate with open canopy) or selectively fail to show impact (unsuitable substrate or with heavy tree canopy). Additionally, the viewing bucket protocol should be housed in WisCALM where it is readily available to users.
DNR Response: This comment relates to monitoring and assessment protocols for the phosphorus response indicators and should be submitted during the public comment period on the draft rule. It will be considered at that time.
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