Public Comments and DNR Responses on the draft Economic Impact Analysis for:
NR 102: Waterbody assessments, biocriteria, & phosphorus response indicators (Natural Resources Board Order No. WY-23-13)
NR 119: A process for developing site-specific criteria for phosphorus
(Natural Resources Board Order No. WT-17-12)
June 12, 2019
This document presents a summary of public comments received on the economic impact analyses for rule package WY-23-13, revisions to ch. NR 102 related to waterbody assessments, biocriteria, and phosphorus response indicators, and WT-17-12 creating a new chapter NR 119 to establish a process for developing site-specific criteria for phosphorus. Responses from the Department of Natural Resources’ (DNR’s) are provided.
Because these two rules are inter-related and cross-reference one another, a joint Economic Impact Analyses (EIA) comment period was held. A 31-day public comment period on the Draft EIA for the two rules was held from April 16 to May 16, 2019. Along with notification on the Department’s rules website, email notification was sent to the following distribution lists, totaling 5,760 recipients:
Water Quality Standards External Advisory Committee that worked on the rules, including U.S. EPA
List of interested parties specific to these rules
Water Quality Standards & Assessments GovDelivery List
WPDES permitted facilities, industrial and municipal surface water dischargers
WPDES interested parties list
Four comment letters were received during the EIA comment period, addressed below. Some comments related to both rules; these have been divided and placed under the rule header that they are most directly related to. Some comments were outside the scope of the EIA comment period and may be resubmitted during the rule comment period.
A public comment period will be held on the revised version of the two rules, with a public hearing in September, 2019.
EIA Comments on Ch. NR 102: Waterbody assessments, biocriteria, and phosphorus response indicators
Chlorophyll a criteria – Scientific support
Comment: DNR has not provided sufficient scientific support for the development of the chlorophyll a criteria. Our understanding is that these criteria were developed based on survey data from perceptions of people recreating in lakes, and included data from Minnesota. To the best of our knowledge, DNR has not released the data relied upon for public review. Further, DNR has not provided an analysis as to how these criteria apply to waterbodies including rivers, impoundments, and streams.
DNR Response: The Technical Support Document provides detailed scientific support for the chlorophyll a criteria. Comments regarding scientific support for the chlorophyll a criteria should be submitted during the comment permit on the draft rule or at the public informational hearing.
Chlorophyll a criteria – Economic impact
Comment: MEG has significant concerns regarding the DNR's determination of minimal economic impact relating to the establishment of the chlorophyll a criteria. The establishment of these criteria could result in more restrictive phosphorus limits for a number of permittees. If a permittee discharging upstream causes or contributes to an exceedance of the chlorophyll a criteria, there is the potential that permittee will receive more restrictive phosphorus limits. This could result in significant compliance costs to the discharger, potentially including a facility upgrade. It is unclear how DNR could reach a minimal economic impact determination without a comprehensive analysis of every WPDES permit upstream of a waterbody subject to the proposed chlorophyll a criteria.
These potential economic concerns are of particular import given that many wastewater treatment plants are already struggling with planning for compliance with phosphorus limits in light of restrictive WQBEL limits, TMDL developments, and potential antidegradation/antibacksliding concerns. The potential economic impacts of these rule packages must be considered in the context of these concerns.
DNR Response: Additional information was provided in the EIA to further explain that economic impacts to WPDES permitted dischargers are not expected. One portion of the rule was revised to remove the application of chlorophyll a criteria to rivers.
Relationship of chlorophyll a to phosphorus permits:
The department’s analysis indicates that, once attained, the existing statewide phosphorus criteria will be protective of the proposed chlorophyll a criteria in most waterbodies. The department does not intend to require chlorophyll a monitoring of discharges, and there are no permit implementation procedures associated with the chlorophyll a standard required in the rule. A more stringent P limit would only be derived is if an SSC is developed and approved that demonstrates the need for lower P than the statewide criterion.
For a waterbody in which the phosphorus criterion is attained but the chlorophyll a criterion is not attained, the solution is likely to involve addressing phosphorus. However, if this were to occur, the department would first evaluate whether a more stringent site-specific criterion (SSC) for phosphorus is needed to attain the chlorophyll a criterion. For any parameter for which the state has a numeric water quality criterion, such as phosphorus, permit limits are set based on attainment of that numeric criterion, not on a separate parameter even though they may be related.
In such a case, if a more protective phosphorus SSC were developed to achieve the chlorophyll a criterion and approved by U.S. EPA, then permit limits would be adjusted accordingly. However, development of a more protective phosphorus SSC would have to go through its own rulemaking process or an equivalent public participation process established in rule, and any costs associated with it would be evaluated at that time. In accordance with these points, since the establishment of chlorophyll a thresholds in WisCALM guidance in 2012, there have been no cases where a chlorophyll a listing has influenced a permit limit, except through Wisconsin River Basin TMDL analysis and related rule proposal for a phosphorus SSC in the Wisconsin River Basin. The Wisconsin River Basin proposed SSC has its own economic analysis.
Further, the potential for a more-stringent SSC for phosphorus to be developed is not increased based on having chlorophyll a criteria in place. Without chlorophyll a criteria, any party could still make a case that a more-stringent phosphorus SSC is needed to address algae in a receiving or downstream water under existing statutory authority. In such case, the requesting party could base their request on any algae level that they demonstrated was appropriate. By establishing a statewide target, this helps provide a consistent goal. However, on a case-by-case basis, a chlorophyll a SSC could also be established if a demonstration were made that a different level of algae is acceptable for recreational or aquatic life purposes in a specific waterbody. Therefore, SSC are still flexible to accommodate site-specific circumstances.
Adjustments to rule language: The department has adjusted the scope of application of river chlorophyll a thresholds as follows, which should minimize concerns about potential effects on permits while maintaining adequate protection for rivers.
Surface water criteria: In the surface water criteria in ch. NR 102, we have removed the chlorophyll recreation criteria for rivers, but retained it for lakes, reservoirs, and impounded flowing waters. This means that rivers would not be listed on the impaired waters list at this time for algae. We believe this is an acceptable approach for the following reasons. DNR has evaluated the phosphorus/chlorophyll a relationship at stations on many of Wisconsin’s rivers. This analysis shows that on all but two river stretches assessed, rivers exceeding the chlorophyll a recreation criteria are also exceeding the phosphorus criteria. The other two stations are both below impoundments that were passing algae through to the river, and are in TMDL areas so will be addressed by TMDLs. Therefore we believe that rivers should be sufficiently protected by a combination of the existing P criteria and the chlorophyll a criteria for any impounded areas along the rivers.
Phosphorus response indicators (PRI): In the PRI in ch. NR 102, we retain the chlorophyll a recreation threshold as a PRI for rivers. These thresholds are used to determine whether a waterbody exceeding phosphorus is in good enough condition to stay off the impaired waters list.
SSC: In ch. NR 119, we adjusted the requirements for an SSC modeling demonstration on rivers:
If the river contains lakes, reservoirs, or impounded areas, the modeling only need demonstrate that the chlorophyll a criteria for those lakes/reservoirs/impounded areas will be met under the SSC P criterion. Modeling for lakes/reservoirs/impoundments is much simpler and cheaper than modeling chlorophyll a within rivers, thus reducing costs for SSC requestors. And, if chlorophyll a targets are met within the lakes/reservoirs/impounded areas, this should ensure that they are also met within the river.
If a river does not contain lakes/reservoirs/impounded areas, then the SSC modeling would need to be based on the chlorophyll a concentration within the river.
Narrative biocriteria: Comparison of rule, guidance, or discontinuation of assessment
Comment: One comment letter requested more detailed analysis of the number of impaired waters under each of several scenarios: (a) if the department did not assess biological communities for impairment status; or if the department assessed biological communities under (b) protocols in WisCALM guidance (status quo); (c) codified narrative biocriteria, and (d) codified numeric biocriteria. The commenter also requested cost estimates under these scenarios.
DNR Response: The department added the following information to the EIA and Technical Support Document to address these comments.
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