Storm water individual permit antidegradation analysis:
Screening: In circumstances where a permittee is unable to utilize the general permit conditions designed to prevent a lowering of water quality that meet the antidegradation policy, the department would proceed to screening and requesting additional information (if necessary) to determine if an individual permit application is required.
Notification: If screening indicated that the discharge was a new or increased discharge that had the potential to lower water quality in a proposed high quality water, the department will notify the applicant that additional information will be required to inform the antidegradation review.
Additional information: Information the applicant would be required to provide includes water quality data where insufficient data exists, the social or economic importance analysis, the range of alternatives considered, and information indicating that the less-degrading alternative has been selected for implementation.
Additional Requirements for outstanding state or national resource waters, exceptional resource waters, and Great Lakes system waters: For stormwater discharges to these high quality waterbody types, the method for determining if a discharge that is equal to or better than the receiving water is as follows: o
Discharges from a municipal facility regulated under subch. I of ch. NR 216, Wis. Adm. Code, shall achieve a discharge less than or equal to the average annual load from the municipality based on achieved pollutant load reductions.o
Discharges from an industrial site regulated under subch. II of ch. NR 216, Wis. Adm. Code, shall implement best management practices that achieve discharge concentrations at or below background concentrations of the receiving water.o
Discharges from a construction site regulated under subch. III, of ch. NR 216, Wis. Adm. Code, shall achieve a discharge less than or equal to the average annual load from the construction site in the pre-development condition.o
Great Lakes system waters, as defined in the renumbered s. NR 102.03(1pr), Wis. Adm. Code, are to be protected from the impacts of persistent, bioaccumulative chemicals of concern by avoiding or limiting to the maximum extent practicable increases in these substances.
Antidegradation Review: The department will use the information submitted by the applicant, and only authorize a lowering of water quality if it finds that a) such lowering is necessary to accommodate important social or economic development in the area of the new or increased discharge, and b) that when one or more practicable alternatives that would prevent or lessen the degradation associated with the proposed discharge are identified, a less-degrading alternative has been selected for implementation, or the additional requirements for outstanding state or national resource waters, exceptional resource waters, and Great Lakes system waters have been met.
Preliminary antidegradation determination: The department will use the information and factors considered in the antidegradation review to condition individual permits to meet the antidegradation policy. If the department finds that the antidegradation policy will not be satisfied, it shall provide written notification to the applicant of the deficiencies.
Opportunity for comment: The department will provide a draft antidegradation determination with public notice to issue or deny the WPDES permit and will consider comments the public or other agencies provide prior to making a final determination on permit issuance.
Final antidegradation determination: When the department determines the proposed activity satisfies or fails to satisfy the antidegradation policy, it will prepare a written final antidegradation determination that will be included with the department’s final determination to issue or deny the WPDES permit. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The federal statutory authority for antidegradation policy is in the Clean Water Act, Section 303(d)(4)(B), which states (bolded for emphasis):
“STANDARD ATTAINED.—For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standard, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section.”The primary federal regulation governing state antidegradation policies and procedures is 40 CFR 131.12, as amended in 2015. Most of the requirements in that section are focused on the content of a state’s antidegradation policy.
40 CFR 131.12(a)(1) requires that “existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” Proposed s. NR 102.045(3), Wis. Adm. Code, contains this requirement.
40 CFR 131.12(a)(2) requires that “where the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.” Proposed s. NR 102.045(5)(c), Wis. Adm. Code, contains these requirements.
40 CFR 131.12(a)(2)(i) states that “the State may identify waters for the protections described in paragraph (a)(2) of this section on a parameter-by-parameter basis or on a water body-by-water body basis. Where the State identifies waters for antidegradation protection on a water body-by-water body basis, the State shall provide an opportunity for public involvement in any decisions about whether the protections described in paragraph (a)(2) of this section will be afforded to a water body, and the factors considered when making those decisions. Further, the State shall not exclude a water body from the protections described in paragraph (a)(2) of this section solely because water quality does not exceed levels necessary to support all of the uses specified in section 101(a)(2) of the Act.” Based on this portion of the regulation, the department proposes to provide antidegradation to some waterbodies on a waterbody-by-waterbody basis and all other waterbodies on a parameter-by-parameter basis. This is reflected in the definition of “high quality waters” found in s. NR 102.045(2)(b), Wis. Adm. Code.
40 CFR 131.12(a)(2)(ii) requires that “before allowing any lowering of high water quality, pursuant to paragraph (a)(2) of this section, the State shall find, after an analysis of alternatives, that such a lowering is necessary to accommodate important economic or social development in the area in which the waters are located.” This requirement is contained in s. NR 102.045(5)(a), Wis. Adm Code. The preamble to the federal rule clarifies that this involves two analyses: an analysis of alternatives and an analysis related to economic or social importance. 80 Fed. Reg. 51032 (Aug. 21, 2015). For the alternatives analysis, the federal regulation further requires that “the analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternatives identifies one or more practicable alternatives, the State shall only find that a lowering is necessary if one such alternative is selected for implementation.” This required part of the antidegradation analysis is included in s. NR 207.031(8)(c) and (9)(a)4., and s. NR 216.008(7)(c)2. and (8)(a)4., Wis. Adm. Code. The requirements for an economic or social importance analysis are contained in s. NR 207.031(8)(b) and (9)(a)3., and s. NR 216.008(7)(d)1. and (8)(a)3., Wis. Adm. Code.
40 CFR 131.12(a)(3) requires that “where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.” Sections NR 102.045(2)(b)1. and (4), and 207.031(6)(a), Wis. Adm. Code, contain this requirement.
40 CFR 131.12(a)(4) requires that antidegradation review of thermal discharges be consistent with Section 316(a) of the Clean Water Act. Section NR 102.045(7), Wis. Adm. Code, contains these requirements.
40 CFR 131.12(b) requires that “the State shall develop methods for implementing the antidegradation policy that are, at a minimum, consistent with the State's policy and with paragraph (a) of this section. The State shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the methods available to the public.” Proposed procedures for implementing Wisconsin’s antidegradation policy are contained in chs. NR 207 and 216, Wis. Adm. Code.7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
The department held a virtual preliminary public hearing on the statement of scope on July 13, 2021. Twenty-three members of the public attended the hearing. No attendees testified verbally. One letter was received seeking additional details that were not available at the time of the scope statement but that have been provided in these draft documents. The comment letter also proposed that stormwater requirements should not be included in this rulemaking because ch. NR 216, Wis. Adm. Code, was being revised in a different rulemaking effort. The department decided to retain stormwater within the scope of this rulemaking because it is specific to antidegradation, which was not addressed in the separate rulemaking related to stormwater requirements. 8. Comparison with Similar Rules in Adjacent States:
A review of water quality standards rules in Illinois, Iowa, Minnesota and Michigan revealed that these states all have antidegradation policies and implementation procedures that are substantively similar to Wisconsin’s proposal. Each state requires the following:
Protection and maintenance of existing uses.
Protection of high quality waters designated both on a waterbody-by-waterbody basis (e.g. Outstanding or Exceptional Resource Waters) and on a parameter-by-parameter basis.
Identification of which waters are included or excluded from the definition of a new or increased discharge.
Submittal of an alternatives analysis.
Submittal of an alternatives analysis for discharges of bioaccumulative chemicals of concern to the Great Lakes system (not applicable to IA).
Submittal of a social or economic importance analysis demonstrating that the proposed discharge is necessary for important social or economic development.
A description of the findings the state must make to approve a proposed new or increased discharge.
Procedures for public participation.Items that vary between states include:
Significance threshold: Wisconsin’s proposal contains a significance threshold that allows applicants proposing discharges below the threshold to use a more streamlined review process. Michigan has the same 10% threshold as Wisconsin’s proposal. Illinois, Iowa, and Minnesota do not contain a significance threshold, so all applicants proposing a new or increased discharge must complete a full antidegradation review regardless of the amount of discharge.
Alternatives analysis: Wisconsin requires an alternatives analysis and selection of a “less-degrading” alternative. Minnesota has a more rigorous alternatives analysis than Wisconsin, requiring applicants to rank alternatives from most to least degrading and select one of the least degrading; Minnesota also provides multiple tests an applicant can run to determine if an impact is substantial. Iowa requires applicants to select the least-degrading and reasonable alternative. Illinois and Michigan require an alternatives analysis, but do not explicitly require selection of a less-degrading alternative.
Social or economic importance analysis: Compared to Wisconsin, Minnesota assesses other factors along with social and economic benefits to determine the social or economic importance of the proposed discharge, including the value of the water resource. Iowa and Michigan are more like Wisconsin, providing a non-exhaustive list of factors an applicant may use to demonstrate social or economic importance. Illinois provides a short but non-exhaustive list of potential benefits of the proposed activity.
General permits: Similar to Wisconsin, Minnesota applies antidegradation procedures to general permits and to stormwater discharges. Iowa applies antidegradation procedures to new or reissued general permits and to individual municipal separate storm sewer system (MS4) permits. In contrast, Michigan exempts discharges authorized under general permits from antidegradation review.
Codification of implementation procedures: In this rule package, Wisconsin proposes to promulgate its antidegradation implementation procedures for clarity and consistency. Iowa and Michigan implement their antidegradation procedures through guidance rather than code. Iowa’s guidance explicitly states that antidegradation review applies to facility plan approval (as in Wisconsin’s proposal). Minnesota has both promulgated implementation procedures and associated guidance.The states’ antidegradation regulations are found here:
Illinois’ antidegradation policy is contained in 35 Ill. Adm. Code 302.105, last amended in 2002.
Iowa's Antidegradation Policy rule, 567 IAC 61.2(2), became effective in state rules on February 17, 2010. Their implementation procedures are laid out in guidance rather than in code (“Iowa Antidegradation Implementation Procedure,” IDNR, 2010).
Minnesota’s antidegradation rules, found at Minn. R. 7050.0250-.0335 and 7052.0300-.0380, became effective Nov. 14, 2016. Minnesota updated its antidegradation rules to be consistent with EPA’s 2015 amendments to 40 CFR 131.12.
Michigan’s antidegradation policy is found in Rule 98 of its Part 4 Water Quality Standards. Michigan implements its antidegradation policy through guidance, rather than administrative rule (“WRD-PS-001 – Antidegradation/Antibacksliding, EGLE, 2021). 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The department reviewed requirements from federal antidegradation regulations and accompanying EPA guidance, as well as approaches used by other states. Procedures were generally revised to maintain consistency with current processes where feasible, while incorporating the 2015 federal requirements. A stakeholder advisory committee was convened to review the proposed procedures and provide feedback.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
Estimated costs for small businesses are summarized in the table below. Full documentation of the methods used for this analysis is provided in Attachment B of the economic impact analysis. The department is conservatively making the assumption that all affected industrial facilities (both wastewater permittees and stormwater permittees) are small businesses as part of this analysis due to the anticipated low number of economically affected industrial facilities statewide overall. This analysis does not separate these small businesses by sector since the rule will apply to all sectors equally.
In summary:
To determine the statewide economic cost of this proposed rule for wastewater discharges, the department evaluated three primary areas of costs: 1) the costs to develop an alternatives analysis, 2) sampling costs incurred by facilities needing to evaluate the background quality of the receiving waterbody or waterbodies, and 3) the costs incurred by facilities that choose an alternative based on the alternatives analysis. Costs to municipal rate-payers were also assessed.
To determine the economic costs to storm water discharges under the proposed rule, the department considered costs associated with: 1) application fees, sampling, data collection and analysis, engineering/consultant costs, 2) the installation of treatment best management practices, and 3) operation and maintenance of specialty filtration systems related to non-conventional pollutants.
The department anticipates that 2 to 3 CAFO permittees will seek to establish surface water discharges under alternative discharge limits (ADLs) in each year. While these facilities would follow the procedures established in this rule, none of these discharges are expected to entail additional costs based on this rule. There are no anticipated cost impacts for typical CAFO permittees that do not discharge to surface water under ADLs.Data for obtaining the cost estimates for small businesses was sourced from: the Wisconsin State Laboratory of Hygiene (for sampling costs), private sector consultants familiar with alternatives analysis costs, internal review of the department’s WPDES permit database, and urban grant recipient costs from 2016 - 2019.
11. Effect on Small Business (initial regulatory flexibility analysis):
From the analyses outlined above, the following table summarizes estimated costs for small businesses.
Cost Summary for Industries (assumed to be small businesses)
Cost Area | Low End Number of Small Businesses Per Year | High End Number of Small Businesses Per Year | Low End Cost Per Small Business | High End Cost Per Small Business | Low End Total Statewide Annual Costs to Small Businesses | High End Total Statewide Annual Costs to Small Businesses |
Alternatives Analysis (Wastewater Permittees) | 1 | 2 | $35,000 | $50,000 | $35,000 | $100,000 |
Sampling (Wastewater Permittees) | 1 | 2 | $600 | $3,600 | $600 | $7,200 |
Construction, New Discharger (Stormwater Permittees) | 0 | 1 | $0 | $900 | $0 | $900 |
Industrial, New Discharger (Stormwater Permittees) | 0 | 1 | $0 | $245,346 | $0 | $245,346 |
Industrial, Increased Discharge (Stormwater Permittees) | 0 | 2 | $0 | $245,346 | $0 | $490,692 |
Total: | $35,600 | $545,192 | $35,600 | $844,138 |
12. Agency Contact Person:
Wade Strickland
Department of Natural Resources
P.O. Box 7921
Madison, WI 53707-7921
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Kristi Minahan
Department of Natural Resources
P.O. Box 7921
Madison, WI 53707-7921
