The statement of scope for this rule, SS# 006-17, was approved by the Governor on July 18, 2017, published in Register No. 739B on July 31, 2017, and approved by the Natural Resources Board on September 27, 2017. This rule was approved by the Governor on insert date.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD RENUMBERING, AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to renumber NR 102.06 (7); to amend NR 102.06 (4) (intro.); and to create NR 102.06 (7) (b) (Intro), 4., (Note for subd. 4.) and (Note 3 for sub. (7)) relating to establishment of site-specific phosphorus criteria for Lac Courte Oreilles, a lake in Sawyer County.
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Section 281.15, Stats. 2. Statutory Authority: Section 281.15, Stats. 3. Explanation of Agency Authority: Section 281.15, Stats., provides the Department with authority to promulgate by rule water quality standards for surface waters or portions of surface waters in the state. Water quality standards consist of designated uses and water quality criteria that are protective of the designated use. The Department has promulgated statewide criteria for phosphorus for different types of surface waters in s. NR 102.06, Wis. Adm. Code. Department rules, specifically s. NR 102.06(7), Wis. Adm. Code, recognize that site-specific criteria may need to be adopted in place of the generally applicable criteria where site-specific data and analysis using scientifically defensible methods and sound scientific rationale demonstrate a different criterion is needed to protect the designated use of a specific surface water segment or waterbody. Section 281.15(2)(c), Stats., further states that the Department may establish criteria which are no more stringent than reasonably necessary to assure attainment of the designated uses for the waterbodies in question.
The Department is proposing rules to establish a phosphorus site-specific criterion for Lac Courte Oreilles because the Department agreed to begin this rulemaking effort as part of a court-approved stipulation filed on April 4, 2017: Dane County Case No. 16-CV-1564 (Admin. Agency Review 30607), James Coors, et. al., v. Wisconsin Department of Natural Resources and Wisconsin State Cranberry Growers Association. The parties to this case include James Coors on behalf of the Courte Oreilles Lakes Association, Inc. (COLA) and the Lac Courte Oreilles Band of Lake Superior Chippewa (the Tribe) (jointly, “Petitioners”), the Wisconsin Department of Natural Resources (the Department) and Natural Resources Board. The Wisconsin State Cranberry Growers Association was dismissed as a party in the stipulation.
In March 2016, the Petitioners submitted a petition to the Department for rulemaking, seeking a site-specific criterion for phosphorus in Lac Courte Oreilles. In May 2016, the Department denied the request for rulemaking for several reasons. Petitioners filed a petition for judicial review asking a court to review the Department’s decision not to promulgate a phosphorus site-specific criterion for the lake. Other issues were also raised in the petition. To resolve the matter, the Department of Justice, on behalf of the Department, entered into a court-approved stipulation filed on April 4, 2017. In the court-approved stipulation, the Department agreed to “propose a phosphorus SSC [site-specific criterion] for Lac Courte Oreilles, inclusive of the East, Central, and West Basins and Stuckey Bay, Musky Bay, Chicago Bay, Brubaker Bay, Anchor Bay, and Northeast Bay, as authorized by Wis. Admin. Code s. NR 102.06(7).” After reviewing the available data, including data and analysis submitted by the Petitioners and their consultants, the Department concluded that it could not legally and scientifically support a more stringent phosphorus criterion for Lac Courte Oreilles pursuant to Wis. Stat. s. 281.15(2) and s. NR 102.06(7), Wis. Adm. Code. Specifically, technical staff were unable to determine a correlation between phosphorus and oxygen levels in Lac Courte Oreilles. Staff instead recommended further research to more fully understand the reasons for oxygen depletion in the lake. Petitioners disagreed with the Department’s conclusion and filed a request with the circuit court to order the Department to propose a phosphorus site-specific criterion for Lac Courte Oreilles under the stipulation. On March 7, 2019, the court issued a decision directing the Department to propose a phosphorus site-specific criterion for Lac Court Oreilles. James Coors, et. al., v. Wisconsin Department of Natural Resources, et al., No. 16-CV-1564 (Wis. Dane Cnty. Cir. Court, Order Mar. 22, 2019). The Department’s subsequent motion for reconsideration was denied, and the Department has chosen to proceed with rulemaking rather than continue with litigation. 4. Related Statutes or Rules: Section NR 102.06, Wis. Adm. Code contains statewide criteria for phosphorus. Additionally, three proposed rules related to phosphorus site-specific criteria are currently undergoing public comment:
- Rule WT-17-12 would establish a standardized process for developing site-specific criteria when appropriate for individual waterbodies.
- Rule WY-23-13 contains phosphorus response indicators such as algae and aquatic plant metrics that are also referenced within Rule WT-17-12 to be used as part of the site-specific criteria development process. - Rule WY-23-13 would also establish statewide “oxythermal” criteria (criteria combining dissolved oxygen concentrations and temperature) to protect two-story fishery lakes throughout the state.
Rule WY-09-18 would establish site-specific criteria for three individual lakes in the Wisconsin River Basin.
5. Plain Language Analysis: This rule proposes two alternatives for a phosphorus site-specific criterion for Lac Courte Oreilles, a lake in Sawyer County. The lake straddles both State land and Tribal lands of the Lac Courte Oreilles Band of Lake Superior Chippewa. Lac Courte Oreilles is a state-classified Outstanding Resource Water and one of a small number of “two-story fishery” lakes in Wisconsin that support a coldwater fishery within its deep basins. The three main basins of Lac Courte Oreilles support cisco and whitefish. The lake also has several small bays and a larger bay called Musky Bay, which are shallow and do not support coldwater fish.
There have been fish kills of cisco and whitefish in the main basins of the lake that all parties agree are likely due to reductions in the oxythermal layer of the lake during late summer. The oxythermal layer is the layer of water that is both cold enough and has enough dissolved oxygen to support coldwater fish. The two-story fishery portion of the lake is currently listed on the state’s impaired waters list as impaired for dissolved oxygen, with the cause of impairment listed as unknown. Petitioners and their consultant requested a site-specific criterion for phosphorus because they concluded that the levels of phosphorus in the lake are a driving factor in the reductions in the oxythermal layer.
Pursuant to s. NR 102.06(7), Wis. Adm. Code, and s. 281.15, Stats., the Department has the authority to develop a site-specific criterion in place of the generally applicable phosphorus criteria in ch. NR 102.06, Wis. Adm. Code, if site-specific, scientifically defensible data and analysis demonstrate a different criterion is protective of the designated use of the specific surface waterbody and the site-specific criterion is no more stringent than reasonably necessary to protect the designated use. The applicable statewide phosphorus criterion for two-story fishery lakes is 15 µg/L under s. NR 102.06(4)(b)1. The Petitioners initially requested a site-specific criterion of 10 µg/L for the entire lake, including Musky Bay and other small bays. The Department considers Musky Bay and all other small bays to be part of the lake. The Department’s sampling and waterbody assessment protocol requires samples to be taken at the deepest parts of the lake. If the sample results from the main basins exceed the criterion, the entire lake would be listed as impaired. Conversely, if the sample results do not exceed the criterion, then the entire lake would be meeting the criterion.
After completing a technical review of data and analysis for Lac Courte Oreilles, the Department concluded that the data did not demonstrate that the phosphorus concentrations in the main basins of Lac Courte Oreilles are correlated with the reduction in the oxythermal layer. This conclusion was reached after reviewing approximately thirty years of data, but of particular relevance it was noted that data collected on the lake from 1988 to 1996 showed that there have been oxygen problems in the basins even when the phosphorus concentrations are low (6-9 µg/L). After reaching this conclusion, the Department met with Petitioners on March 15, 2018, and Petitioners submitted a revised analysis that suggested setting the phosphorus criterion at 11.6 µg/L.
Petitioners and the Department did not agree on whether there was sufficient technical information and legal justification for a site-specific criterion that was lower than the current standard. Petitioners requested that the circuit court order the Department to continue with rulemaking and propose a site-specific criterion for Lac Courte Oreilles. On March 7, 2019, the court issued a decision directing the Department to propose a phosphorus site-specific criterion for Lac Court Oreilles pursuant to the stipulation. The Court stated: “We have a stipulation and an order. And I don’t need to get into the science . . . I do know that the DNR agreed to the stipulation. . . . I have not heard any reason or justification that the DNR can’t comply with it.” James Coors, et. al., v. Wisconsin Department of Natural Resources, et al., Dane County No. 16-CV-1564 (March 22, 2019 Transcript, pages 13-14.).
In view of the different opinions regarding whether a site-specific phosphorus criterion is necessary to protect the designated use of the lake and the legal standards for the adoption of a site-specific phosphorus criterion, the Department is seeking comment on two alternatives for a phosphorus criterion for the lake. The proposed alternatives below would apply only to Lac Courte Oreilles; the Department is not proposing any change to the statewide phosphorus criterion of 15 µg/L applied to other two-story fishery lakes.
Main basins: A brief description of the analyses supporting the two options for the main basins is provided in Section 8, below, and detailed technical documents are available with the materials for public review. Under each of the options below, the Department assesses compliance with the criterion through sampling near the deep points of the three main basins, consistent with protocols for assessment of all lakes in the state.
- Option A: 10 µg/L total phosphorus, to be applied at the East, Central, and West Basins. This is based on the Petitioners’ scientific analysis that proposed a site-specific criterion of 10 µg/L total phosphorus to protect the lake’s designated uses and fishery (LimnoTech. 2016. Phosphorus Site-Specific Criteria Proposal for: Lac Courte Oreilles.).
- Option B – No change from current criterion: 15 µg/L total phosphorus, to be applied at the East, Central, and West Basins. This option is to maintain the equivalent to the statewide phosphorus criterion of 15 µg/L for two-story fishery lakes, which currently applies to Lac Courte Oreilles. This is based on the Department’s analysis concluding that existing scientific information does not justify development of a phosphorus site-specific criterion for this lake (WDNR. 2018. Lac Courte Oreilles, Sawyer County: Phosphorus Site-Specific Criteria Analysis, WDNR Technical Support Document.).
Musky Bay and other small bays of the lake: If Musky Bay and the small bays of the lake are treated consistently with how all lakes in the state are assessed for phosphorus, Musky Bay and the small bays along the main basins do not have a separate criterion and are not assessed separately, but are considered part of the lake as a whole. If the criterion for the main basins is not attained at any of the three basin deep points, then the lake as a whole, including the bays, would be listed as impaired.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
40 CFR 131 Subparts A-C contain 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.