ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 216.022, 216.07 (6) (a) (note), (8) (e) (note), 216.21 (4), 216.29 (1) (e) (note) and (g), 216.32 (5), and 216.42 (6) and (10); to renumber 216.04, 216.21 (2) (b) 7., and 216.42 (2); to renumber and amend NR 216.06 and 216.415; to amend NR 216.003 (1), 216.005 (note), 216.03 (intro.) and (note), 216.03 (2) (a) and (b), 216.07 (intro), (1), (5) (a), (6) (a), (6) (a) 2. and 4., (8) .; 216.07 (8) (intro) and (b), 216.09, 216.21 (2) (b) 1., (3) (b) 3 and (Note), (3) (e) 2., 216.22 (4) and (note), 216.27 (1), (3)(c)9., 216.29 (1) (a), (b), (e) and (f), 216.31, 216.32 (2) and (4) (note), 216.42 (1), (3), and (3) (note), 216.43 (1), (1) (note), and (2), 216.44 (1) and (3), 216.455 (1) and (2), 216.46 (4) (a), 216.47 (1), 216.48 (1) (b) (note), 216.50 (1) (a), 216.54, and 216.55 (2) and (note); and to create NR 216.002 (1m), (7m), (12m), (18m), (19m), (23m), (25m), (36m), (37m), (39g), and (39r), 216.003 (3), 216.006, 216.007, 216.031 (1) (b) to (e), 216.032, 216.06 (2) to (4) and (4) (note), 216.07 (7) (i), (8) (f) to (j), (10) and (11), 216.075, 216.21 (2) (b) 7. a., 216.27 (3)(c)9. (note), (cm), and (3)(j) 6., 216.42 (2) (b) and (c), (3m), 216.42 (8) (note), 216.43 (4) and (5), 216.46 (4) (g), 216.47 (7), 216.49 (3) and (4), and 216.55 (6) relating to storm water discharge permits and affecting small business. |
WT-09-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
Section 283.33(8), Stats., directs the department to promulgate rules for the administration of s. 283.33, Stats., which sets forth the requirements for storm water discharge permits under the Wisconsin Pollutant Discharge Elimination System (WPDES) program. Chapter NR 216, Wis. Adm. Code, was initially promulgated in 1994 pursuant to the department’s statutory authority and subsequently amended in 2004. Chapter NR 216 establishes the criteria under which municipalities, industrial facilities, and construction site owners must obtain coverage under a WPDES storm water discharge permit pursuant to s. 283.33, Stats. The department proposes amending ch. NR 216 to align with federal storm water requirements and effectuate consistency with relevant changes to state statutes and federal requirements. 4. Related Statutes or Rules:
This rule is directly related to the statewide non-agricultural performance standards pursuant to ch. NR 151, Wis. Adm. Code, and s. 283.33(8), Stats., directing the department to develop rules for the administration of storm water discharge permits. 5. Plain Language Analysis:
Chapter NR 216 outlines the provisions for storm water discharge permits that apply to municipalities in urban areas, industrial facilities, and construction sites that disturb more than one acre. This chapter was last updated in 2004. The purpose of this proposed rule change is to address the issues identified by the U.S. Environmental Policy Agency (USEPA) Region 5 by letter to the DNR dated July 18, 2011 as a result of their Legal Authorities Review (LAR); update the references to the non-agricultural and transportation facility performance standards in ch. NR 151; codify other federal storm water requirements that have become effective since the previous promulgation of amendments to ch. NR 216; and update fees authorized by s. 283.33 (9), Stats. (A) The proposed changes that affect all subchapters under ch. NR 216 are briefly summarized below: (1) Definitions—The department proposes defining additional terms to support language in the subchapters.
(2) National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule—The department proposes creating s. NR 216.006 to require electronic submittal of permit applications, reports, and other documents. The section also establishes a waiver process for those who provide justification for submitting documents in hard copy. All references to document submittal requirements have been updated to reference s. NR 216.006. (3) References to ch. NR 151—The department proposes to update references to ch. NR 151 to include sections that became effective on January 1, 2011. (4) Water quality standards—The department proposes to create s. NR 216.007 to improve consistency with federal regulations regarding protections for outstanding resource waters (ORW), exceptional resource waters (ERW), and impaired waters. This section provides more direct code support for provisions in storm water permits requiring protection of high-quality water resources and reduction of pollutant discharges to impaired waters. Total Maximum Daily Loads (TMDLs) are required to be included in WPDES permits by s. 283.31(3)(d)3, Stats. and s. NR 205.067(3)(a), Wis. Adm. Code. The existing statute and code are tailored toward implementation for traditional point sources such as wastewater treatment plants. The department proposes modifications to ch. NR 216 to clarify how TMDLs are addressed in storm water permits. (5) Coverage under subsequent permits—The department proposes creating s. NR 216.003 (3) to clarify applicability of expired and reissued general permits to entities covered under an industrial or construction general permit (6) Other environmental programs—The department proposes repealing ss. NR 216.022, 216.21(4), and 216.42(6) to remove exemptions from storm water permitting for activities covered under other department programs. This revision addresses EPA issues 23 and 24 of the LAR. (B) The proposed changes that affect the municipal subchapter are briefly summarized below:
(1) National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule—The department proposes amending Subchapter I of ch. NR 216 to be consistent with federal regulations requiring permit conditions that are clear, specific, and measurable for the minimum control measures included in s. NR 216.07 and provide for public input on those conditions. The changes proposed clarify the department’s authority to define requirements for these programs in permits, implement improvements in each successive permit, and obtain the information needed for those improvements from permit applications, reapplications, and reporting. (2) Application requirements—The department proposes amending subchapter I to clarify the application requirements for coverage under general and individual permits.
(3) The department proposes to create s. NR 216.07(8)(f) to require permittees to identify any other entities they are relying on to satisfy some of the permit obligations within the annual report. This revision addresses EPA Issue 56 of the LAR. (4) Annual reporting requirements—The department proposes creating subsections within s. NR 216.07(8) to evaluate the effectiveness of an MS4s storm water management program within the annual report and require MS4s to summarize any changes to required programs. This revision addresses LAR issues 57 and 67. (5) Records—The department proposes to create s. NR 216.07(11) to require permittees to retain records related to permit requirements and make them available to the public. This revision addresses LAR issue 67. (6) TMDLs—The department proposes amending s. NR 216.04 to clarify when TMDL provisions will be included in permits. The department proposes creating s. NR 216.07 (7) to require, within a permit, mapping related to TMDL implementation. The department proposes creating s. NR 216.07 (10) to provide a framework for TMDL implementation through demonstrated progress when meeting the TMDL in one 5-year permit term is not feasible. The existing urbanized area performance standard language previously listed under pollution prevention has also been moved into this section for clarity. (7) Authorized local program—The department proposes renumbering s. NR 216.415 to s. NR 216.10. Additional discussion is provided in the discussion of proposed changes to the construction subsection. (C) The proposed changes that affect the industrial subchapter are briefly summarized below:
(1) Permitted area—The department proposes amending s. NR 216.21(2)(b) to remove the exclusion of access roads and rail lines from the area covered by an industrial storm water discharge permit. This exclusion is not authorized by federal law. This revision addresses LAR issue 52. (2) Construction and demolition disposal sites—The department proposes amending s. NR 216.21(2)(b)7. to clarify that construction and demolition waste disposal sites require industrial storm water permits. (3) Location information—The department proposes amending ss. NR 216.21(3)(b)3.(Note) and 216.21(3)(e)2. to require that an applicant certifying ‘no exposure’ provide its latitude and longitude as part of that request. As a requirement, this information needs to be moved from a note to a code section. This revision addresses LAR issue 53. (4) Storm Water Pollution Prevention Plan (SWPPP)—The department proposes amending s. NR 216.27 to require the submittal of a SWPPP rather than a SWPPP summary form. The department proposes amending, ch. NR 216 to require industrial permittees to address ERW, ORW, impaired waters, and TMDLs in their SWPPP where applicable. The department proposes adding a requirement to evaluate hydrology impacts to wetlands for sites with ongoing grading. (D) The proposed changes that affect the construction subchapter are briefly summarized below:
(1) Authorized local program—The department proposes renumbering NR 216.415 to 216.10 and amending language within s. NR 216.415. This section provides for streamlined permitting for construction sites that require both state and local construction site erosion control permit coverage in participating municipalities. The section is renumbered to move it into the municipal permit subchapter to clarify that the department plans to limit participation to only those municipalities that hold an MS4 storm water discharge permit. The amendments require transfer of permit submittal documents from the participating municipality to the department before permit coverage is conveyed by both entities. It also includes references to provisions in the construction site chapter on permit coverage denial, revocation, and individual permit processes. The amendment adds a requirement for the participating municipality to notify the department of compliances issues that cannot be resolved within a specified time frame. This revision addresses EPA Issue 25 of the LAR. (2) Exemptions for certain agricultural and silvicultural activities—The department proposes clarifying ss. NR 216.42 (2) to (3) and 216.57 (3) to be more consistent with state statute and federal regulations. (3) Routine maintenance—The department proposes creating a note to s. NR 216.42 (8) to better align with federal implementation of this exemption and provide regulatory certainty. (4) Erosion control and storm water management plan—The department proposes adding requirements to discuss impacts to ORW, ERW, impaired waters, TMDLs, and hydrology impacts to wetlands in the list of elements required to be included in the plan.
(5) Update fee structure and program delivery-The department proposes amending s. NR 216.43 (2) to update construction site storm water discharge permit fee categories and fees. The department also proposes creating s. NR 216.43 (5) to clarify that permittees are required to reapply for coverage when the duration of land disturbing construction activity extends longer than 3 years. (6) Certificate posting—The department proposes amending s. NR 216.455 (2) to clarify that certificates of permit coverage shall be posted in publicly accessible locations. (7) Amendments—The department proposes amending s. NR 216.50 to clarify the circumstances where an amendment is required and when a new notice of intent is warranted. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Under 40 CFR 123.25(a), “[a]ll State Programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each…” which includes, among other NPDES permit programs, storm water discharge permits under 40 CFR 122.26; general permits under 40 CFR 122.28; and conditions applicable to specified categories of permits under 40 CFR 122.42. The primary purpose of the proposed rule changes is to address technical inconsistencies with federal requirements and to address recently promulgated federal requirements that state-authorized programs must accommodate. The federal storm water requirements are primarily found in 40 CFR Parts 122, 123, and 127. With the revisions contained in this rule package, department rules will be consistent with the following federal regulations:
Storm water discharges applicable to state NPDES programs in 40 CFR 122.26,
National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule amending 40 CFR 122,
Permit requirements for regulated small MS4 permits in 40 CFR 122.34,
Additional conditions for municipal separate storm sewer systems in 40 CFR 122.42 (c)(2),
State program requirements in 40 CFR 123.1(g)(1) and 123.25 (a)(4), and
The NPDES Electronic Reporting Rule in 40 CFR 127.7. Comparison with Similar Rules in Adjacent States:
For this rule package, comparisons were made to other states in EPA Region 5 (Illinois, Indiana, Michigan, Minnesota, and Ohio) and Iowa. All of those states are subject to the Clean Water Act and EPA regulations.
Illinois, Iowa, Michigan, and Minnesota appear to incorporate the Clean Water Act by reference in their respective administrative codes pertaining to storm water permitting (see 35 III. IL Adm. Code; Subtitle C.1 and s. 455B.103A, Iowa Code; and ss. R 323.2161, R 323.2190 Michigan Adm. Code; and ss. 790.100 to 790.300 Minnesota Adm. Code). Indiana in 327 IAC 15-13, IAC 15-6, and IAC 15-5 provides regulations similar to those currently in ch. NR 216, Wis. Adm. Code. Ohio, in chs. 3745-39, provides regulations similar to those currently being proposed in this rulemaking effort. Ohio updated its storm water rules in 2019 to address the Remand Rule and Electronic Reporting. All six states establish permit fees via administrative code. Construction site permit fees range from $100-$750. Iowa’s fees are based on the years of coverage (1, 3, 4, or 5), with fees ranging from $175 to $700. Illinois’ fees are based on acres disturbed, with $250 for less than 5 acres and $750 for more than 5 acres. Indiana, Michigan, and Minnesota have flat fees of $100 for Indiana and $400 for Michigan and Minnesota.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The proposed modifications to the construction permit application fees are based on an evaluation of current fees, current program costs, changes in workload, and permit application data from the department’s database. An increase to the construction site application fees is proposed for the following reasons:
1. The current fees are $140 to $350 and have not been updated since 2003. Applying a 2% per year rate of inflation over 20 years, the fees in 2023 would be 1.49 times (150%) the 2003 fee amount to account for inflation.
2. The demand for construction site permitting services has increased both in number of permits and complexity of projects since 2003, There is increased demand for technical assistance on complex projects and technical standards incorporating new technology.
3. The department is required to charge storm water fees proportional to the cost of program administration. The current construction fees support 16% of construction program costs. In comparison, fees collected for municipal permits cover 48% of municipal program costs and those collected for industrial permits cover 65% of industrial program costs.
4. Costs associated with increased efficiencies in permit turnaround time during the past decade are not sustainable at the current level of funding. Developing the e-permitting system reduced notice of intent turnaround time from 31 days to 17 days. Ongoing support of the system is expected to cost about $31,000 annually.
5. Under the proposed fees, 93% of construction permittees would be paying fees comparable to other states based on project size. Larger projects typically require more staff time; higher fees are proposed for sites that disturb more than 25 acres which make up the remaining 7% of permit applications.
6. Increasing fees will allow the program to provide a more consistent level of service to permit applicants. In 2020 the department received the second highest number of construction site NOIs in all the years that the program has existed while incurring a GPR funding lapse.
7. Fees are a small portion of overall project costs. Permits only apply to projects that are expected to disturb more than one acre of land for construction activities. Typical permitted projects have construction costs that exceed $1 million.
