CR 23-010 Rule Text

The statement of scope for this rule, SS 051-21, was approved by the Governor on May 13, 2021, published in Register No. 785B on May 24, 2021, and approved by the Natural Resources Board on August 11, 2021. This rule was approved by the Governor on insert date.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, RENUMBERING AND AMENDING, , AMENDING, REPEALING AND RECREATING AND CREATING RULES

The Wisconsin Natural Resources Board proposes an order to repeal NR 102.05 (1), 102.13 and 207.11 (5); to renumber and amend NR 102.12 (1); to amend NR 102.23 (3), 103.06 (2), 106.03 (4r), 106.145 (4) (b), 212.74 (intro.) and 212.75 (intro.); to repeal and recreate NR 207 subch. I; and to create NR 102.03 (1L), (1p), and (1pg), 102.045, 207.001, 216.008, and 216.03 (3), relating to updating Wisconsin’s water quality antidegradation policy and procedures and affecting small business.

WY-13-20

Analysis Prepared by the Department of Natural Resources

1. Statutes Interpreted:

Section 281.12, Wis. Stats.

Section 283.13(5), Wis. Stats.

Section 281.13(1)(a) and (b), Wis. Stats.

Section 281.15, Wis. Stats.

Section 281.65(4)(c) and (cd), Wis. Stats.

Section 283.11(5), Wis. Stats.

Section 283.13(5), Wis. Stats.

Section 283.31(3) and (4), Wis. Stats.

Section 283.55, Wis. Stats.

Section 283.83, Wis. Stats.

Section 227.11(2), Wis. Stats.

2. Statutory Authority:

Section 281.12, Wis. Stats.

Section 281.13(1)(a) and (b), Wis. Stats.

Section 281.15, Wis. Stats.

Section 281.65(4)(c) and (cd), Wis. Stats.

Section 283.13(5), Wis. Stats.

Section 283.31(3) and (4), Wis. Stats.

Section 283.33, Wis. Stats.

Section 283.37, Wis. Stats.

Section 283.55, Wis. Stats.

Section 283.83, Wis. Stats.

Section 227.11(2), Wis. Stats.

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