(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.
The rest of the changes to ch. NR 216 are focused on ensuring consistency with federal rules and state statutes and are not based on data or analysis. 9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The economic analysis was developed using information from several sources. The number and type of entities potentially impacted were determined through reports from the database the department uses to track discharge permits. Municipal program update costs were developed using averages from recent urban non-point source grant application budgets for similar work. Hourly rates were based on information from the bureau for labor statistics. Costs incurred will primarily be due to additional information requested from municipal separate storm sewer permittees to conform to federal regulations, storm water prevention plan updates for industrial sites with ongoing grading and increases to construction site permit fees. The following economic impact statements for related federal rules and state statutes were also referenced:
Methods for developing the economic impact and impact to small businesses are described in more detail in this rule’s Fiscal Estimate/Economic Impact Analysis.
10. Effect on Small Business (initial regulatory flexibility analysis):
This rule’s net impact on small business is expected to be $235,200. This includes $2,400 in postage savings due to electronic permitting, $105,700 in costs industrial permittees with small businesses to update storm water pollution prevention plans, and $131,900 in increased construction site permit fees and additional information required with the permit application.
For the construction subprogram, it was assumed that small businesses were most likely to be associated with the smallest sites. For the construction permit application fee updates, a separate category was created for sites with under 2 acres of land disturbance. The application fee for this category was increased at a lower rate compared to sites over 2 acres to limit impacts to small businesses and local government entities.
11. Agency Contact Person:
Amy Minser
Wisconsin Department of Natural Resources
Bureau of Watershed Management, WT/3
101 S. Webster St.
P.O. Box 7921
Madison, WI 53707-7921
608/266-4359
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, fax or email to the contact information listed above.
