33 USC s. 1313(i)(1)(B) (section 303(i)(1)(B) of the Clean Water Act), provides that states shall promulgate and submit pathogen and pathogen indicators for coastal recreation waters based on federal criteria published by USEPA under 33 USC s. 1314(a)(9). Coastal waters are defined in 33 USC s. 1362(21) and the definition includes Great Lakes waters.
33 USC s. 1313(c) (section 303(c) of the Clean Water Act) requires that states periodically review and modify or adopt, if necessary, water quality standards. This requirement applies to all surface waters in the state.
33 USC s. 1313(b) provides that EPA may promulgate water quality standards if a state fails to promulgate a standard in accordance with the timeframes established 33 USC 1313(a). 33 USC 1314(a) requires that EPA develop and publish criteria for water quality for all waters for uses such as aquatic life, public health protection and recreation. 33 USC 1314(a)(9) specifically requires that EPA publish revised water quality criteria for pathogen and pathogen indicators for coastal recreation waters. The recommended recreational criteria based on pathogens were published by EPA in the federal register on November 29, 2012, Volume 77, No. 230., pages 71191-71192. These revised federal criteria and assessment methods were published pursuant to 33 USC 1314(a)1) and (9). The Office of Water at USEPA published a fact sheet and guidance document explaining the recommended criteria and assessment methodologies (EPA Publication 820-F-12-061, December 2012; and Publication 820-F-12-058 2012). Federal regulations (40 CFR 131.10 and 11) require states to develop water quality standards that comprise of uses and criteria to protect the uses. 40 CFR 131.11 (b) states that the criteria must be based on federal guidance, federal guidance modified to reflect site-specific criteria, or other scientifically-defensible methods. 40 CFR ss. 131.4 and 131.11 allow states to adopt their own water quality criteria so long as these criteria are protective of human health or welfare, enhance the quality of the water, and serve the purposes of the Clean Water Act. These criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. Pursuant to state statutory authority, the Department is proposing to revise its criteria and recreational use categories statewide based on the 2012 EPA recommended recreational criteria consistent with the federal requirements in 33 USC s. 1313(c) and (i)(1)(B) and federal regulations in 40 CFR 131.10, 131.11 and 131.20. After promulgation, the revised criteria, site specific criteria analyses and the creation of recreational sub categories require EPA approval pursuant to 40 CFR 131.20 and 131.21. The Department is also proposing to promulgate rules to establish WPDES permit implementation procedures for the revised standard, to establish listing procedures for waters impaired for bacteria/pathogens, and test methods for effluent monitoring.
33 USC 46(b)(2)(A)(i) authorizes the EPA to give program development and implementation grants to states for monitoring and notification of closures for coastal recreation waters. To be eligible for a BEACH Act grant, the state’s water quality program must be consistent with the performance criteria established by the EPA (see 33 USC 1346(b)(2)(A)(i)). In the National Beach Guidance and Required Performance Criteria for Grants document published in 2014 (EPA-823-B-14-001), the EPA added adoption of new or revised recreational water quality standard as a performance criterion to ensure that all BEACH Act states have the most up-to-date water quality standards (p. 19 and chapter 4 of EPA-823-B-14-001). 8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
The Department expects minimal economic impacts as a result of this rule. In fact, there will be economic relief for permittees currently required to monitor to meet state and federal regulations independently. The proposed rule will change the pathogen indicator and may change the illness rate. This rule is not likely to have a significant economic impact to small businesses.
Changing the pathogen indicator from fecal coliform to E. coli may impact dischargers. The most likely source for additional costs is changes in the test method used for effluent monitoring. Permitted facilities on inland waters will need to switch to a different analytical method for effluent monitoring. However, the costs incurred to shift between indicators should be minimal because analytical costs are similar and E. coli testing is readily available in the marketplace. Permitted facilities discharging to the Great Lakes will likely encounter reduced costs because many will no longer be required to monitor for both fecal coliform and E. coli.
Because fecal coliform and E. coli are indicators of fecal contamination and disinfection strategies are designed to kill or inactivate organisms that cause disease, it is unlikely that facilities will need to alter their disinfection strategies to meet the new limits. The current monitoring information from dischargers to the Great Lakes indicates that the change in criteria should have little or no effect on permit compliance.
The economic impact of this rule package is dependent on the illness rate selected. Selection of the higher risk level is consistent with the status quo and is not likely to economically impact dischargers, communities, and the State. Selection of the lower risk level is more protective than the status quo and may alter effluent limits, impaired waters listings, future TMDL development, and beach advisories. As such, additional work will be completed during rule development to evaluate the economic impact of the risk level selection. No state has selected the lower risk level.
9. Anticipated number, month and locations of public hearings:
The Department anticipates holding 2 public hearings in the month of December, 2016. Hearing cities will be: Madison and Wausau or Eau Claire (or other as appropriate).
The Department will hold these hearings in these locations to receive input from affected parties based in the Madison area and at a centrally located city in the state.
Contact Person:
Sarah Yang
Environmental Toxicologist
Bureau of Water Quality
Wisconsin Department of Natural Resources
608-266-9262
