283.15(5)(c)2.a.
a. Reasonably beyond the technical or financial capability of the permittee; or
283.15(5)(d)
(d) The department may impose conditions in the permit as necessary to administer the variance including, but not limited to, additional monitoring requirements.
283.15(6)
(6) Renewal. A variance may not be renewed if the permittee did not submit the reports required under
sub. (5) (c) 2. or substantially comply with all other conditions of the variance.
283.15(7)
(7) Delegation of secretary's authority. The secretary may designate an officer or employee of the department to make any decision that the secretary is required to make under this section.
283.15(8)
(8) No right to a hearing. Notwithstanding
s. 227.42, there is no right to a hearing under this section.
283.15(9)
(9) Relation to permit review. If the secretary approves part or all of a variance or modifies and approves the variance under this section and the department issues a modified water quality based effluent limitation under
s. 283.63 for the same substance, the permittee shall comply with the least stringent of the 2 effluent limitations.
283.15(10)(a)(a) Subsections (2) to
(5) do not apply if the water quality based effluent limitation results from the decision of the department under
s. 283.63 to make the water quality based effluent limitation less stringent than the effluent limitation in the permit as issued, reissued or modified.
283.15(10)(b)
(b) Subsections (2) to
(5) apply if the water quality based effluent limitation results from the decision of the department under
s. 283.63 to make the water quality based effluent limitation more stringent than the effluent limitation in the permit as issued, reissued or modified.
283.15(10)(c)
(c) This section does not apply to the issuance, reissuance or modification of a permit to incorporate a toxic effluent standard or prohibition promulgated by rule under
s. 283.11 (4) or
283.21.
283.15 Cross-reference
Cross-reference: See also ch.
NR 212 and s.
NR 200.01, Wis. adm. code.
283.16
283.16
Statewide variance for phosphorus. 283.16(1)(a)
(a) "Basin" means the drainage area identified by an 8-digit hydrologic unit code, as determined by the U.S. Geological Survey.
283.16(1)(b)
(b) "Category" means a class or category of point sources specified by the department under
s. 283.13 (1) or publicly owned treatment works.
283.16(1)(d)
(d) "Existing source" means a point source that was covered by a permit on December 1, 2010.
283.16(1)(e)
(e) "Major facility upgrade" means the addition of new treatment equipment and a new treatment process.
283.16(1)(h)1.
1. For a point source in a watershed for which a federally approved total maximum daily load under
33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the point source complied with its effluent limitation based on the total maximum daily load in effect on April 25, 2014.
283.16(1)(h)2.
2. For a point source in a watershed for which no federally approved total maximum daily load under
33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the average concentration of phosphorus in the effluent discharged by the point source during the year was 0.2 milligrams per liter.
283.16(1)(i)
(i) "Water quality based effluent limitation" means an effluent limitation under
s. 283.13 (5), including an effluent limitation based on a total maximum daily load under
33 USC 1313 (d) (1) (C) approved by the federal environmental protection agency.
283.16(2)
(2) Initial determination concerning the water quality standard for phosphorus. 283.16(2)(a)(a) The department of administration, in consultation with the department of natural resources, shall determine whether attaining the water quality standard for phosphorus, adopted under
s. 281.15, through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible because it would cause substantial and widespread adverse social and economic impacts on a statewide basis. The department of administration may make separate determinations under this paragraph for statewide categories of point sources.
283.16(2)(b)
(b) The department of administration shall include all of the following in its determination under
par. (a), based on water quality based effluent limitations for phosphorus determined by the department of natural resources:
283.16(2)(b)1.
1. A calculation of the statewide cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades.
283.16(2)(b)2.
2. A calculation of the statewide per household cost for water pollution control by publicly owned treatment works that cannot achieve compliance with water quality based effluent limitations for phosphorus without major facility upgrades, including the projected costs of compliance with those water quality based effluent limitations, and a calculation of the percentage of median household income the per household cost represents.
283.16(2)(b)4.
4. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause substantial adverse social and economic impacts on a statewide basis.
283.16(2)(b)5.
5. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause widespread adverse social and economic impacts on a statewide basis.
283.16(2)(c)
(c) The department of administration shall make a preliminary determination under
par. (a) no later than the 240th day after April 25, 2014. The department of administration shall provide public notice, through an electronic notification system that it establishes or selects, of its preliminary determination and shall provide the opportunity for public comment on the preliminary determination for at least 30 days following the public notice.
283.16(2)(d)
(d) The department of administration shall consider any public comments in making its final determination under
par. (a) and shall make the final determination no later than the 30th day after the end of the public comment period.
283.16(2)(e)
(e) The department of administration shall send a notice that describes its final determination under
par. (a) to the legislative reference bureau for publication in the administrative register.
283.16(2)(em)
(em) If the department of administration determines under
par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the department of natural resources shall seek approval under
40 CFR Part 131 from the federal environmental protection agency for the variance under this section.
283.16(2)(f)
(f) If the department of administration determines under
par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the determination remains in effect until the department of administration finds under
sub. (3) (c) that the determination is no longer accurate.
283.16(2m)
(2m) Water quality standards review. Every 3 years as part of the review of water quality standards required by
33 USC 1313 (c) (1), if the variance under this section is in effect, the department shall determine whether formal review under
sub. (3) should be undertaken, considering any comments it receives on the variance under this section.
283.16(3)
(3) Review of findings and requirements of variance. 283.16(3)(a)(a) In 2024, if a determination under
sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible is in effect, or upon a determination under
sub. (2m) that review under this subsection should be undertaken, the department of administration, in consultation with the department of natural resources, shall prepare a report, no later than September 1, to evaluate whether the determination under
sub. (2) (a) remains accurate. The department of administration shall consult with permittees that would be subject to water quality based effluent limitations for phosphorus and other interested parties in preparing the report.
283.16(3)(b)
(b) The department of natural resources shall provide all of the following to the department of administration for the report under
par. (a):
283.16(3)(b)1.
1. A determination of whether technology is reasonably available for point sources to comply with effluent limitations for phosphorus that are more stringent than those in
sub. (6) (a).
283.16(3)(b)2.
2. A determination of whether technology is reasonably available for any category of point sources to comply with effluent limitations for phosphorus that are more stringent than those in
sub. (6) (a).
283.16(3)(b)3.
3. A determination of whether any technology that is reasonably available for compliance with effluent limitations for phosphorus that are more stringent than those in
sub. (6) (a) is cost effective.
283.16(3)(c)
(c) Based on its report under
par. (a), the department of administration, in consultation with the department of natural resources, shall decide whether the determination that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible remains accurate.
283.16(3)(cm)
(cm) If the department of administration decides under
par. (c) that the determination remains accurate, the department of natural resources shall decide whether it is appropriate to apply more stringent effluent limitations than those in
sub. (6) (a) to all point sources or to any category of point sources, based on the availability and cost effectiveness of technology for compliance and, if so, specify those more stringent effluent limitations based on the report under
par. (a).
283.16(3)(d)
(d) The department of administration shall provide public notice of its preliminary decisions under
par. (c) no later than the 60th day after preparing the report under
par. (a) and shall provide the opportunity for public comment on the decisions for at least 30 days following the public notice.
283.16(3)(e)
(e) The department of administration shall consider any public comments in making its final decisions under
par. (c) and shall make the final decisions no later than the 30th day after the end of the public comment period.
283.16(3)(f)
(f) The department of administration shall send a notice that describes its final decisions under
par. (c) to the legislative reference bureau for publication in the administrative register.
283.16(3)(g)
(g) If the department of administration decides under
par. (c) that the determination described in that paragraph remains accurate, the department of natural resources shall seek aproval from the federal environmental protection agency under
40 CFR 131.21 for renewal of the variance under this section.
283.16(4)(a)(a) When a determination under
sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible and approval of the variance under this section by the federal environmental protection agency are in effect, a permittee is eligible for a variance to the water quality standard for phosphorus for an existing source if all of the following apply:
283.16(4)(a)2.
2. Subject to
par. (am) 1., the permittee certifies that the existing source cannot achieve compliance with the water quality based effluent limitation for phosphorus without a major facility upgrade.
283.16(4)(a)3.
3. The permittee agrees to comply with the requirements under
sub. (6).
283.16(4)(am)1.1. The department shall approve an application for a variance if the requirements in
pars. (a) and
(b) are complied with, unless the department determines that the certification under
par. (a) 2. is substantially inaccurate.
283.16(4)(am)2.
2. The department shall act on an application for a variance under this section no later than the 30th day after the day on which the department receives the application for the variance.
283.16(4)(am)3.
3. If the department does not act on the application for a variance by the deadline under
subd. 2., the application is approved.
283.16(4)(b)
(b) A permittee may apply for the variance under this section in any of the following ways:
283.16(4)(b)1.
1. By requesting the variance in the application for reissuance of the permit.
283.16(4)(b)2.
2. By requesting the variance within 60 days after the department reissues or modifies the permit to include a water quality based effluent limitation for phosphorus.
283.16(4)(b)3.
3. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus, by requesting a modification of the permit.
283.16(4)(b)4.
4. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus and that requires the permittee to submit to the department options for complying with the water quality based effluent limitation, by submitting a request for the variance as a compliance option.
283.16(4)(c)
(c) After an application for a variance is submitted to the department under
par. (b) 2.,
3., or
4., and until the last day for seeking review of the department's final decision on the application or a later date fixed by order of the reviewing court, the water quality based effluent limitation for phosphorus and any corresponding compliance schedule are not effective. All other provisions of the permit continue in effect except those for which a petition for review has been submitted under
s. 283.63.
283.16(4)(d)
(d) The variance under this section remains in effect for a point source until the permit is reissued, modified, or revoked and reissued.
283.16(4)(e)
(e) Notwithstanding
s. 227.42, there is no right to a hearing under this subsection.
283.16(4)(f)
(f) If the department approves a variance under this section and the department issues a modified water quality based effluent limitation under
s. 283.63 for phosphorus, the permittee shall comply with the least stringent of the 2 effluent limitations.
283.16(6)(a)(a) Except as provided in
par. (ae) or
(am) or
sub. (7), in the permit for a point source for which the department approves the variance under this section the department may include a requirement that the permittee optimize the performance of the point source in controlling phosphorus discharges and shall include the following interim limits:
283.16(6)(a)1.
1. In the first permit for which the department approves the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.8 milligrams per liter as a monthly average.
283.16(6)(a)2.
2. In the 2nd permit for which the department approves the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.6 milligrams per liter as a monthly average.
283.16(6)(a)3.
3. In the 3rd permit for which the department includes the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.5 milligrams per liter as a monthly average.
283.16(6)(a)4.
4. In the 4th permit for which the department includes the variance, a requirement to achieve, by the end of the term of that permit, compliance with the water quality based effluent limitation for phosphorus.
283.16(6)(ae)
(ae) If a permittee who chose an option for complying with a water quality based effluent limitation for phosphorus other than the variance under this section applies for the variance under this section, the department shall count a permit that included the other compliance option as though the permit had included the variance, for the purposes of
par. (a), including determining the applicable interim limit.
283.16(6)(am)
(am) If a permittee certifies that the point source cannot achieve compliance with an interim limit in
par. (a) 1.,
2., or
3. without a major facility upgrade, the department shall include in the permit a requirement to achieve compliance with the most stringent achievable interim limit, except that the department may not include an interim limit that is higher than the limit established under
s. 283.11 (3) (am).
283.16(6)(b)
(b) In the permit for a point source for which the department approves the variance under this section, in addition to the requirements under
par. (a) or
(am) or
sub. (7), the department shall require the permittee to implement the permittee's choice of the following measures to reduce the amount of phosphorus entering the waters of the state:
283.16(6)(b)2.
2. Entering into a binding, written agreement with the department under which the permittee constructs a project or implements a plan that is designed to result in an annual reduction of phosphorus pollution from other sources in the basin in which the point source is located, in an amount equal to the difference between the annual amount of phosphorus discharged by the point source and the target value.
283.16(6)(b)3.
3. Entering into a binding written agreement, that is approved by the department, with another person under which the person constructs a project or implements a plan that is designed to result in an annual reduction of phosphorus pollution from other sources in the basin in which the point source is located, in an amount equal to the difference between the annual amount of phosphorus discharged by the point source and the target value.
283.16(7)
(7) More stringent effluent limitations. If the department determines under
sub. (3) (cm) that it is appropriate to apply more stringent effluent limitations than those in
sub. (6) (a) to all point sources or to a category of point sources, the department shall include the more stringent effluent limitations specified under
sub. (3) (cm) in permits reissued, modified, or revoked and reissued after that determination for all point sources or for the category of point sources to which the more stringent effluent limitations apply.
283.16(8)(a)1.1. A permittee that chooses to make payments for phosphorus reduction under
sub. (6) (b) 1. shall make the payments to each county that is participating in the program under this subsection and that has territory within the basin in which the point source is located in proportion to the amount of territory each county has within the basin. The permittee shall make a total payment by March 1 of each calendar year in the amount equal to the per pound amount under
subd. 2. times the number of pounds by which the amount of phosphorus discharged by the point source during the previous year exceeded the point source's target value or $640,000, whichever is less. If no county that has territory within the basin is participating in the program under this subsection, the department shall direct the permittee to make payments to participating counties selected by the department.
283.16(8)(a)2.
2. The per pound payment for this subsection is $50 beginning on April 25, 2014. Beginning in 2015, the department shall adjust the per pound payment each year by a percentage equal to the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the federal department of labor, for the 12 months ending on the preceding December 31. The adjusted amount takes effect for permits reissued on April 1. The per pound payment in effect when a permit is reissued applies for the term of the permit.
283.16(8)(b)1.1. A county shall use payments received under this subsection to provide cost sharing under
s. 281.16 (3) (e) or
(4) for projects to reduce the amount of phosphorus entering the waters of the state, for staff to implement projects to reduce the amount of phosphorus entering the waters of the state from nonpoint sources, or for modeling or monitoring to evaluate the amount of phosphorus in the waters of the state for planning purposes.
283.16(8)(b)2.
2. A county shall use at least 65 percent of the amounts received under this subsection to provide cost sharing under
s. 281.16 (3) (e) or
(4).
283.16(8)(b)2m.
2m. No later than March 1 of each year, a county shall develop a plan for using the payments received under this subsection in the previous year that is consistent with the county's land and water resource management plan under
s. 92.10. A county shall do all of the following in the plan under this subdivision:
283.16(8)(b)2m.a.
a. Identify projects that have, or watersheds in which there exists, the greatest potential to reduce the amount of phosphorus per acre entering the waters of the state, based on an assessment of the land and land use practices in the county.
