EIA Response to Comments

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:

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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.

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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.