3. Explanation of Agency Authority:
The statutory authority for revising the antidegradation policy statement in ch. NR 102, Wis Adm. Code, which is a narrative water quality standard, and for revising the procedures used to implement the policy in Wisconsin Pollutant Discharge Elimination System (WPDES) permits is as follows: 1.
Section 281.12, Wis. Stats., grants the department general supervision and control to carry out the planning, management, and regulatory programs necessary for prevention and reduction of water pollution and for improvement of water quality. 2.
Section 281.13(1)(a) and (b), Wis. Stats., give the department the authority to create rules to research and assess water quality in the state. 3.
Section 281.15, Wis. Stats., mandates that the department promulgate water quality standards, including water quality criteria and designated uses. It recognizes that different use categories and criteria are appropriate for different types of waterbodies, and that the department shall establish criteria which are not more stringent than reasonably necessary to ensure attainment of the designated use for the waterbodies.4.
Section 281.65(4)(c) and (cd), Wis. Stats., directs the department to prepare a list of impaired waters. 5.
Section 283.13(5), Wis. Stats., states that the department shall establish more stringent limitations than required under that section when necessary to comply with water quality standards or any other state or federal law.6.
Section 283.31(3) and (4), Wis. Stats., state that the department may issue a permit upon condition that the permit contains limitations necessary to comply with any applicable federal law or regulation, state water quality standards, and total maximum daily loads.7.
Section 283.33(8), Wis. Stats., directs the department to promulgate rules for the administration of s. 283.33, Wis. Stats., which sets forth the requirements for storm water discharge permits under the WPDES program.8.
Section 283.37, Wis. Stats., gives the department authority to promulgate rules regarding permit applications.9.
Section 283.55, Wis. Stats., gives the department authority to impose monitoring and reporting requirements.10.
Section 283.83, Wis. Stats., requires that the department establish a continuing planning process and that plans shall include implementation procedures including compliance schedules for new water quality standards. 11.
Section 227.11(2), Wis. Stats., provides the department with the authority to promulgate rules that are necessary to administer the specific statutory directives in chs. 281 and 283, Wis. Stats.4. Related Statutes or Rules:
These proposed rules relate to surface water quality standards and the WPDES permit program, specifically the antidegradation policy currently located at s. NR 102.05(1), Wis. Adm. Code, and antidegradation policy implementation procedures in chs. NR 207 and 216, Wis. Adm. Code. Related rules include chs. NR 102, 104, 105, and 106, Wis. Adm. Code, which contain Wisconsin’s surface water quality standards and their application, and chs. NR 200 to 299, Wis. Adm. Code., which contain requirements for the WPDES permit program. Chapter 283, Wis. Stats., contains the statutory authority and requirements for the WPDES permit program. 5. Plain Language Analysis:
Under the federal Clean Water Act, states are required to have an antidegradation policy as well as implementation procedures for the policy as part of their surface water quality standards. The policy and implementation procedures must protect existing uses of rivers, lakes, and streams, as well as protect waters that are doing better than water quality standards (high quality waters) from unnecessary degradation, potentially caused by new or increased discharges from regulated point sources. A state may only authorize lowering of water quality (i.e., increasing the concentration, level or load of a pollutant) of a high quality water if it finds that such lowering is necessary based on a social or economic analysis in the area of the high quality water. Wisconsin has an antidegradation policy (s. NR 102.05(1), Wis. Adm. Code) that has been in place since 1973 and has implementation procedures (ch. NR 207, Wis. Adm. Code) that were last updated in 2006. In 2015, EPA revised its regulations regarding water quality standards, including 40 CFR 131.12, which specifies what requirements state antidegradation policy statements must include. The purpose of this rulemaking is to revise Wisconsin’s existing antidegradation policy to be consistent with federal requirements and to ensure the implementation procedures are both clear and appropriately consistent with the antidegradation policy. Minor updates were made to chs. NR 103, 106, and 212 to cross-references or for consistency of definitions. Antidegradation Policy Statement
The state’s antidegradation policy is a narrative water quality standard contained in ch. NR 102. The existing policy under ch. NR 102.05 is being replaced with an updated policy under ch. NR 102.045. The proposed language reflects the requirements of 40 CFR 131.12, as updated by EPA in 2015. The proposed policy states that existing uses of surface waters will be maintained and protected. Proposed revisions clearly define what is a “high quality water” in Wisconsin. EPA’s regulations offer states two options for defining “high quality”: on a waterbody-by-waterbody basis and/or on a parameter-by-parameter basis. The proposed definition of “high quality waters” is a hybrid option, using both approaches. Some Wisconsin waters are high quality by type, such as Outstanding Resource Waters and Exceptional Resource Waters that are listed in ch. NR 102, Wis. Adm. Code. All other waterbodies that are not high quality by type may be considered high quality on a parameter-by-parameter (e.g., phosphorus, chloride, copper, etc.) basis if water quality is better than a water quality standard for a designated use. This means that a waterbody can be high quality for one or more parameters, even if it is impaired for a different parameter. For example, a waterbody may be impaired for phosphorus, but chloride levels are better than the chloride water quality criterion. The waterbody would be considered high quality for the purposes of considering new or increased discharges of chloride, but would not be high quality for phosphorus. Proposed revisions to the antidegradation policy also define which waters are non-high quality (e.g., impaired waters, limited aquatic life waters, etc.). In order to prevent further degradation of waters that are already impaired, the proposed policy prohibits lowering of water quality with respect to the concentration, level, or loading of a parameter that is causing the impairment. The proposed revisions to the policy statement direct how degradation will be prevented for each type of high quality water. For waters that are high quality by type, water quality must be maintained and protected, with no lowering of water quality, except as specified for certain proposed discharges to exceptional resource waters as stated in the implementation procedures (chs. NR 207 and 216, Wis. Adm. Code). For all other high quality waters, the policy requires that the department may only approve a lowering of water quality when the applicant has analyzed practicable alternatives and demonstrates to the department that lowering of water quality is necessary to support important social or economic development in the area of the new or increased discharge. The department must also find that existing uses of the water will be maintained and protected, and that statutory and regulatory requirements for all point sources under ch. 283, Wis. Stats., and relevant requirements for regulated nonpoint sources under s. 281.16, Wis. Stats., and ch. NR 151, Wis. Adm. Code, are being achieved. In making these findings, the department must solicit public input. The final two requirements in the antidegradation policy statement address protection of Great Lakes system waters and thermal discharges. The Great Lakes system waters must be protected from the impacts of persistent, bioaccumulative chemicals of concern by avoiding or limiting increases of these substances. Evaluation of degradation potentially caused by new or increased thermal discharges must be consistent with federal Clean Water Act section 316(a).
Antidegradation Policy Implementation Procedures
This rule package proposes to repeal and recreate the existing subch. I of ch. NR 207, Wis. Adm. Code, to align with the proposed revisions to the antidegradation policy statement in proposed s. NR 102.045, Wis. Adm. Code. The recreated subchapter will set procedures applicable to proposed new or increased discharges to high quality waters and apply to any person or facility proposing to increase an existing discharge or create a new discharge to the surface waters of the state. The majority of the procedures in ch. NR 207, Wis. Adm. Code, generally apply to new or increased discharges of wastewater covered by an individual WPDES permit, but procedures applicable to general WPDES permits are also included. The antidegradation policy implementation procedures applicable to stormwater discharges to high quality waters regulated under s. 283.33, Wis. Stats. will be located in s. NR 216.008, Wis. Adm. Code. New or increased discharges to high quality waters from concentrated animal feeding operations (CAFOs) seeking an alternative discharge limitation under s. NR 243.13 (2)(b) or (3)(c), Wis. Adm. Code, will follow the procedures for review of individually permitted wastewater discharges in the recreated ch. NR 207, Wis. Adm. Code. Wastewater individual permit antidegradation analysis:
The proposed revisions to ch. NR 207, Wis. Adm. Code, start with defining a new or increased discharge so that applicability of antidegradation procedures is clear. The definition also details what will not be considered an increased discharge. To be consistent with the antidegradation policy stated in s. NR 102.045, Wis. Adm. Code, the department will conduct a review of any new or increased discharge covered by an individual WPDES permit and determine whether it will lower water quality in a high quality water as defined in s. NR 102.045(2)(b), Wis. Adm. Code. If a determination of significant lowering of water quality is made, the department will then determine whether any proposed lowering of water quality has been prevented or lessened and also whether lowering is necessary to support important social or economic development in the area where the waters are located. The applicant shall submit the information and supporting evidence required by ch. NR 207, Wis. Adm. Code, using department-approved forms and following applicable instructions. The department’s determination will be based upon department review of antidegradation application materials, which would be submitted as part of a permit application or a proposed municipal facility plan. The sequence of antidegradation review for discharges covered by an individual wastewater WPDES permit is as follows:
Antidegradation screening: The department screens each request to determine whether lowering of water quality may be allowable and whether such lowering requires an antidegradation review.o
New or increased discharge determination: The department determines whether the proposed discharge meets the definition of a new discharge or an increased discharge.o
High quality waters determination: If the proposed discharge is a new or increased discharge, the department determines whether the receiving water or downstream waters affected by the proposed discharge are high quality waters as defined in s. NR 102.045 (1)(a)3., Wis. Adm. Code. If the proposed new or increased discharge is to a water listed on the section 303(d) list as not attaining a water quality criterion for a specific parameter or the department has data showing that it is not attaining a water quality criterion for a parameter, no lowering of water quality will be allowed with respect to the concentration, level, or loading of a parameter that is causing the impairment.o
Total maximum daily load (TMDL) area determination: If the proposed new or increased discharge is for a pollutant allocated under an EPA-approved TMDL, the department determines whether a potential lowering of water quality may be allowable and whether an antidegradation review is required.o
Notification: If there is potential to lower water quality in a high quality water, the department notifies the applicant that an antidegradation review is required and further information must be submitted.
Water quality data: If there is insufficient existing ambient water quality data to determine concentrations or levels of the parameters of concern in the receiving waters and downstream waters, the applicant must obtain and submit sufficient data for the department’s determination.
Requirements for certain types of high quality waters:o
Outstanding Resource Waters: The department will not approve any change in effluent concentration, level or loading unless it would improve water quality. Effluent limits will be set equal to or better than background concentrations upstream of or adjacent to the discharge site, or at water quality criterion, whichever is more protective.o
Exceptional Resource Waters: Effluent limits will be set equal to or better than background concentrations upstream of or adjacent to the discharge site, or at water quality criterion, whichever is more protective, unless lowering of water quality is necessary to prevent or correct contamination or a public health problem.o
Great Lakes system waters: New or increased discharges of bioaccumulating chemicals of concern are prohibited unless the applicant demonstrates the necessity to lower water quality through an antidegradation analysis.
Antidegradation review for other high quality waters:Significant lowering of water quality determination. The department determines whether the proposed discharge would constitute a significant lowering of water quality. Any lowering of water quality due to a bioaccumulative chemical of concern is considered significant. For other discharges, a new or increased discharge will result in a significant lowering of water quality if there is a proposed increase of a parameter over 10% of the assimilative capacity of the receiving water for that parameter. If the department finds that the proposal would not result in a significant lowering of water quality, no further antidegradation review is required, allowing the applicant to proceed without a determination of social or economic need or an alternatives analysis. After an applicant has received a one-time increase that is at or below the 10% threshold for a given parameter, the next time the applicant requests an increase for the parameter, a full antidegradation review will be required.
o
Social or economic analysis. For a discharge that the department determines would result in a significant lowering of water quality, the applicant shall submit sufficient information to demonstrate that the project is necessary to accommodate important social or economic development in the area where the receiving water is located. A list of factors to consider in making this determination is contained in the rule.o
Alternatives analysis. For a discharge that the department determines would be a significant lowering of water quality, the applicant must submit a description and analysis of a range of practicable alternatives that have the potential to prevent or lessen the degradation associated with the proposed discharge.o
Departmental antidegradation review: After review of all submitted materials, the department will only authorize a lowering of water quality if it finds that such lowering is necessary to accommodate important social or economic development, and that a less-degrading practicable alternative has been chosen for implementation. Any alternative that is approved by the department will have permit limits set to utilize the amount of assimilative capacity demonstrated to be needed by the facility for the approved alternative. The department will ensure that point source and state-regulated nonpoint source discharges to the receiving water will meet requirements under the antidegradation policy in s. NR 102.045(5)(c), Wis. Adm. Code. o
Departmental determination: The department will provide a preliminary written determination as to whether or not the antidegradation policy in s. NR 102.045, Wis. Adm. Code, has been satisfied. If not, the applicant will be notified of deficiencies. In that case, for new dischargers, permit limits shall be set equal to background concentrations or criteria, whichever is more stringent. For a proposed increased discharge, the department will not authorize less-stringent permit limits than those currently in effect. The department will seek public comment on its preliminary determination. After consideration of any comments, the final antidegradation determination will be included with the department’s final determination to issue or deny the WPDES permit or to approve or disapprove the facility plan. Wastewater and stormwater general permit antidegradation analysis. The department will apply the antidegradation policy and implementation methods to each new or reissued general WPDES permit for wastewater and storm water discharging to surface water as part of the general permit issuance process. Before a general permit is issued or reissued, the department will obtain available evidence, as necessary, to support specific requirements, permit conditions, and findings as they relate to any new or increased discharges that would be covered by the general permit. Further, the department will make findings on how the antidegradation policy and the antidegradation implementation requirements are met. Finally, the department will provide the antidegradation determination during the general permit public notice and accept comments on the determination. If the department issues a determination that a general WPDES permit achieves the antidegradation water quality standard, additional antidegradation reviews are not required if the permittee seeking coverage under the general permit certifies the permit conditions are met and the department confers coverage under the general permit.
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.
