Note: Typically, monitoring and analysis under subs. (3) to (4) will need to be completed before the extent of the study area eligible for the SSC can be identified.
(6) Downstream protection. For less stringent SSC, the submittal shall contain a demonstration that potentially affected downstream waters’ uses are protected by the proposed SSC, using one of the following methods:
(a) Waters in the study area under sub. (1) that are downstream of the extent of the study area that may be eligible for the SSC as determined under sub. (5) shall be assessed as follows:
1. If the downstream segment adjacent to the proposed SSC extent attains its applicable phosphorus criteria, phosphorus response indicators, and biological assessment thresholds, the SSC is protective of downstream waters.
2. If the proposed SSC extent directly joins a river listed in s. NR 102.06 (3) that is not attaining one or more of its phosphorus response indicators or biological assessment thresholds, an SSC may be established but shall not be set higher than either the phosphorus criterion of the river or the ambient total phosphorus concentration of the SSC extent. Note: Under this paragraph, Strahler stream order should be used to determine the length of the adjacent downstream segment.
(b) If a demonstration for downstream protection under par. (a) is not appropriate or feasible, an alternative demonstration of downstream protection may be submitted by the requestor to the department.
(7) Proposed SSC and supporting materials. The submittal shall contain the proposed SSC and materials supporting the proposal, including all of the following:
(a) Determination of the SSC that would be appropriately protective of designated uses in the waterbody and downstream, based on the analyses in this section.
(b) Demonstration that there is a statistically significant difference between the proposed SSC and the statewide phosphorus criterion, based on estimation of the uncertainty in the relationships developed under sub. (4) (b).
Note: For example, an SSC may be demonstrated to be significantly different from the statewide criterion if the statewide phosphorus criterion is outside the 2-sided 80% confidence interval around the proposed phosphorus SSC concentration.
(c) A draft technical support document that contains the information required in this chapter to support the SSC and meets the requirements specified in s. 281.15, Stats. All raw data and calculations shall also be submitted to the department. Note: Section 281.15 (2) (b) to (e), Stats., requires information on socioeconomic costs and considerations, a demonstration that the criterion is no more stringent than reasonably necessary to assure attainment of a waterbody’s designated uses, application of reasonable statistical techniques, and a technical support document detailing methods used to develop the criterion. Note: The department recommends that requestors meet with the department early in the process to determine additional data needs and protocols before developing a monitoring or modeling plan or submitting an SSC request. The department may provide technical assistance as resources allow. Any preliminary advice provided by the department is not binding, but is meant to inform the requestor’s decision on whether to develop an SSC and the information needed to do so.
NR 119.07 Decision regarding SSC request. (1) The department shall review an SSC request and make a determination on whether the SSC is approvable.
(2) The department may initiate rulemaking under subch. II of ch. 227, Stats., if, after reviewing the submittal, it determines that the proposed SSC is approvable under s. 281.15, Stats. The department shall notify the requestor of its determination. Promulgation of an SSC is a revision to a water quality standard and it requires U.S. EPA approval under 40 CFR ss. 131.20 and 131.21. Note: An SSC can only be used as the basis for a TMDL after it has been approved by U.S. EPA and taken effect.
(3) If the department determines that a proposed SSC is not approvable under s. 281.15, Stats., s. NR 102.06 (7), and this chapter, then it shall notify the SSC requestor in writing and provide an explanation of the reason for the denial. If a request for an SSC is denied, the requestor may choose to submit additional data or analysis or submit a petition for rulemaking to the department pursuant to the procedures specified in ss. NR 2.03 and 2.05 and s. 227.12, Stats. Note: If the department chooses not to initiate rulemaking under this section, a petition for rulemaking may be submitted to the department pursuant to s. 227.12, Stats. A petition for rulemaking under s. 227.12 (1), Stats., may be submitted by a municipality, an association which is representative of a farm, labor, business or professional group, or any 5 or more persons having an interest in the rule. If a s. 227.12, Stats., petition is denied by the department, the petitioners may seek review of the decision under ch. 227, Stats. In addition, a person may request that U.S. EPA promulgate an SSC under 40 CFR 131.22 (b). Note: To be notified of rulemaking related to water quality standards and assessments, including SSC, the public may subscribe to the water quality standards and assessments electronic notification system on the department’s home page at http://dnr.wi.gov/. Requests to be placed on the WPDES permit public notification list may be directed to the Department of Natural Resources, WPDES Permits, P.O. Box 7921, Madison, Wisconsin 53707-7921. Notifications to the mailing list will be sent electronically unless the requestor specifies a preference for a mailed copy. (4) Any promulgated SSC may later be revised through rulemaking.
Section 4. Effective Date. This rule takes effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.), Stats. Section 5. Board adoption. This rule was approved and adopted with germane modifications by the State of Wisconsin Natural Resources Board on January 26, 2022.
Dated at Madison, Wisconsin _____________________________.
STATE OF WISCONSIN
DEPARTMENT OF NATURAL RESOURCES
BY ______________________________________
For Preston D. Cole, Secretary
