NR 217.16(1)(b) (b) Whether waters upstream of the impaired waters are meeting the phosphorus criteria; and

NR 217.16(1)(c) (c) Whether waters downstream of the impaired water are meeting the phosphorus criteria.

NR 217.16(2) (2) If the phosphorus limitation based on an approved TMDL is less stringent than the water quality based effluent limitation calculated in s. NR 217.13, the department may include the TMDL based limit in lieu of the limit calculated in s. NR 217.13 if the limit calculated under s. NR 217.13 has not yet taken effect. If the department includes the TMDL based limitation for phosphorus in the WPDES permit in lieu of the limit calculated in s. NR 217.13, the TMDL based limit may remain in the permit for up to two permit terms to allow time for implementation of the TMDL, or the implementation period specified in the TMDL, whichever is less. The department may include a schedule of compliance to achieve a TMDL based limit if the department determines a schedule of compliance is necessary. If after two permit terms, the department determines the nonpoint source load allocation has not been substantially reduced, the department may impose the more stringent water quality based effluent limitation calculated under s. NR 217.13, or may include the TMDL based limitation for an additional permit term if the department determines there will be significant nonpoint source load reductions within the upcoming permit term. If the department decides to remove a TMDL based phosphorus limit from a permit and instead include a more stringent water quality based phosphorus limit in the permit calculated under s. NR 217.13, the department may provide a schedule of compliance for the more stringent limit if the department determines additional time is needed for the permittee to comply with the revised limit. Such schedules shall require compliance as soon as possible, but in no case no more than five years from the date that the permit is reissued or modified to include the revised effluent limitations.

NR 217.16(3) (3) If a phosphorus water quality based limit calculated under s. NR 217.13 has already taken effect in a permit, the department may replace the limit with a less stringent TMDL based limit, if allowed pursuant to antidegradation procedures in ch. NR 207.

NR 217.16 Note Note: The TMDL based limitation may be less stringent than the water quality based effluent limitation calculated under s. NR 217.13 in cases where nonpoint sources are the significant phosphorus sources responsible for the impairment.

NR 217.16(4) (4) If the phosphorus limitation based on an approved TMDL is more stringent than the water quality based effluent limitation calculated under s. NR 217.13, the department shall include the more stringent TMDL based limitation in the WPDES permit.

NR 217.16 History History: CR 10-035: cr. Register November 2010 No. 659, eff. 12-1-10.

NR 217.17 NR 217.17 Schedules of compliance.

NR 217.17(1) (1) General.

NR 217.17(1)(a) (a) Except as provided in sub. (4), the department may provide a schedule of compliance for a water quality based phosphorus limitation in a WPDES permit, where based on available information the department finds that:

NR 217.17(1)(a)1. 1. The schedule of compliance will lead to compliance with the water quality based effluent limitation as soon as possible; and

NR 217.17(1)(a)2. 2. The schedule of compliance is appropriate and necessary because the permittee cannot immediately achieve compliance with the water quality based effluent limitation based on existing operation of its treatment system.

NR 217.17 Note Note: Before any compliance schedule is established in a permit pursuant to this subchapter, the department must make the finding in par. (a).

NR 217.17(1)(b) (b) In determining whether a compliance schedule is appropriate and determining the length of the compliance schedule, the department shall consider all of the following factors:

NR 217.17(1)(b)1. 1. Whether there is any need for modifications to the treatment facilities, operations or measures to meet the water quality based effluent limitation, and if so, how long it will take to implement the modifications. If the department determines that a permittee only needs to make operational changes to achieve compliance with a limitation, the compliance schedule shall be as brief as possible and only allow time for operational start-up adjustments.

NR 217.17(1)(b)2. 2. The amount of time the discharger has already had to meet the water quality based effluent limitation under prior permits.

NR 217.17(1)(b)3. 3. The extent to which the discharger has made good faith efforts to comply with the water quality based effluent limitation and other requirements in prior permits, if applicable.

NR 217.17(1)(b)4. 4. The extent to which the phosphorus removal process technologies have been developed and proven to be effective.

NR 217.17(1)(c) (c) In determining whether a compliance schedule is appropriate and determining the length of the compliance schedule, the department may also consider any of the following factors:

NR 217.17(1)(c)1. 1. Whether there is a need to acquire a substantial amount of property to accommodate the needed modifications; and

NR 217.17(1)(c)2. 2. Whether there is a need to develop an extensive financing plan and obtain financing for the proposed treatment plant upgrade.

NR 217.17 Note Note: A compliance schedule may be provided for a water quality based effluent limit for phosphorus calculated under s. NR 217.13 and a TMDL based limit for phosphorus.

NR 217.17(2) (2) Maximum compliance schedule period. Except for situations where filtration or a similar phosphorus removal process is required, any compliance schedule established by the department under sub. (1) may not exceed seven years from the date a permit was first modified or reissued to include a water quality based phosphorus limit calculated under s. NR 217.13. Where compliance with the water quality based phosphorus limit requires the construction of filtration or a similar phosphorus removal process, the department may grant a schedule of compliance not to exceed nine years from the date that the permit is first reissued or modified to include effluent limitations developed under provisions of this subchapter. In cases where a compliance schedule extends beyond five years, the department may revise the schedule at reissuance or pursuant to a permit modification.

NR 217.17(3) (3) requirements, limitations, dates, and reporting. When granting a schedule of compliance, the department shall include, as conditions of the permit, the following:

NR 217.17(3)(a) (a) Dates for achievement of interim requirements. The time between interim dates may not exceed one year.

NR 217.17(3)(b) (b) A sequence of actions or operations that may include, as appropriate, but are not limited to:

NR 217.17(3)(b)1. 1. Development and implementation of a phosphorus discharge optimization plan for the current operation.

NR 217.17(3)(b)2. 2. Preparation of preliminary and final designs for new or modified treatment technology.

NR 217.17(3)(b)3. 3. Initiation and completion of construction.