NR 102.51(2)
(2)
Individual waterbody assessments and section 303 (d) list. NR 102.51(2)(a)(a) The department shall identify and report on waters not meeting any applicable water quality standard prescribed under statute or a promulgated rule,
pursuant to section 303 (d) of the Clean Water Act,
33 USC 1313 (d), and
40 CFR 130.7 (b) and
130.10 (b) (2). The department shall assess individual waterbodies that have sufficient and readily available datasets, as specified in the department's water quality standards and assessment protocols, to determine whether a waterbody is attaining water quality standards. The department determines whether a waterbody's designated uses are supported by evaluating attainment of its water quality criteria and biological assessment thresholds. The department shall assess data collected from a waterbody against each applicable water quality standard or assessment threshold independently, unless a combined assessment procedure is specified in rule. The department shall report any waters not attaining applicable water quality standards to the U.S. EPA. Only water quality standards that have been promulgated via statute or rule may be considered for the purposes of listing a waterbody on the section 303 (d) list.
NR 102.51(2)(b)
(b) When the department submits the section 305 (b) biennial assessment report and section 303 (d) list, it shall provide all of the following information if an assessment indicates that one or more of a waterbody's water quality standards are not attained:
NR 102.51(2)(b)1.
1. A waterbody is listed on the section 303 (d) list for a pollutant if a pollutant's water quality criterion is not attained and it may require a total maximum daily load analysis.
NR 102.51(2)(b)2.
2. A waterbody is reported as having an observed effect of degradation if the waterbody does not attain one or more biological assessment thresholds or water quality criteria for parameters that are not pollutants, such as dissolved oxygen. In listing observed effects, the department may not formally attribute these effects to a specific pollutant until the department conducts an evaluation of potential causes, including nonchemical stressors such as habitat degradation or hydrological modification, and identifies one or more specific pollutants as causing or contributing to biological degradation.
Listing of observed effects would not require development of a total daily maximum load for a waterbody unless a specific pollutant exceeding its promulgated water quality standard is identified by the department as a cause of the observed effect.
NR 102.51 Note
Note: If a waterbody is not attaining water quality criteria for a pollutant, it will be listed on the section 303 (d) list regardless of attainment of biological assessment thresholds unless otherwise specified in the pollutant's criteria or procedures specified in those chapters (for instance, the combined assessment approach for phosphorus under s.
NR 102.60), or if site-specific criteria are developed and attained.
NR 102.51 Note
Note: This subsection does not preclude other types of assessments that may be needed or required for other purposes. The department has authority to research and assess the quality and condition of the state's waters under s.
281.13, Stats.
NR 102.51 Note
Note: As required under
40 CFR 130.7 (b) (4), waters on the section 303 (d) list may require a total maximum daily load analysis. The department prioritizes and develops total maximum daily load analyses as discussed in subch.
III of ch. NR 212. In addition, if a specific pollutant is identified as contributing to biological degradation, a site-specific criterion for the pollutant may be developed through rulemaking if appropriate.
NR 102.51 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.52(1)
(1)
General. The department's protocols for assessing waterbodies shall be consistent with the state's water quality standards and federal regulations and be based on relevant scientific information. The department's protocols may include components such as minimum data requirements, sampling methods, quality control, statistical analysis of data, allowable frequency of exceedance of criteria or thresholds, and use of professional judgment.
NR 102.52 Note
Note: When assessing waterbodies, the department uses its guidance for waterbody assessments titled “Wisconsin Consolidated Assessment and Listing Methodology,” or WisCALM. Although a description of the state's assessment methodology is required to be submitted to U.S. EPA, U.S. EPA does not approve or disapprove the state's assessment methodology under section 303 (d) of the Clean Water Act.
NR 102.52(2)
(2)
Sample variability and confidence intervals. NR 102.52(2)(a)
(a) For assessment determinations, the department may determine that multiple samples are necessary to account for variability inherent in the waterbody, sampling results, or other conditions. The department may evaluate attainment of criteria or thresholds, using assessment methodology that accounts for both the central tendency of the data, such as the mean or median, and the variability of the samples.
NR 102.52(2)(b)
(b) The department may apply a confidence interval approach to determine the number of samples needed and to increase certainty in the attainment decision. For metrics expressed as a mean or percentile of a group of samples, the department may use the two-sided 80
percent confidence interval of the mean or percentile for assessment. Other methods of calculating a confidence interval may be applied as appropriate for a specific metric, data type, or statistical goal. Once the confidence interval is determined under this paragraph, it is then compared to the criterion or threshold as specified in par.
(c).
NR 102.52(2)(c)
(c) When applying an approach under par.
(b), the department shall compare the confidence interval to the applicable criterion or threshold using one of the following evaluation criteria:
NR 102.52(2)(c)1.
1. If the entire confidence interval is attaining the criterion or threshold, no further samples are needed to make the attainment determination.
NR 102.52(2)(c)2.
2. If the entire confidence interval is not attaining the criterion or threshold, no further samples are needed to make the non-attainment determination.
NR 102.52(2)(c)3.
3. If the criterion or threshold is within the confidence interval, the assessment will be deferred until more data can be collected with the goal of narrowing the interval to determine whether subd.
1. or
2. applies. After further data collection, if the criterion or threshold continues to be within the confidence interval, the attainment determination shall be made by directly comparing the sample mean or percentile to the criterion or threshold.
NR 102.52 Note
Note: With confidence intervals calculated under par. (b), there is 90 percent confidence that the attainment decision is correct because there is 80 percent confidence that the waterbody's true value is within the interval, 10 percent confidence that it is greater than the interval, and 10 percent confidence that it is less than the interval.
NR 102.52 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.53
NR 102.53 Reporting, public participation, and approvals. NR 102.53(1)(1)
Report development. For development of the biennial assessment report and section 303 (d) list, the department shall assemble, evaluate, and submit water quality-related data, information, and assessment protocols to U.S. EPA.
NR 102.53(2)(a)(a) The department shall solicit assessment data from citizens and partner groups prior to the waterbody assessment process. Readily available data sets that meet minimum data requirements and are submitted in the department's specified format during the biennial data solicitation period shall be considered by the department when conducting assessments.
NR 102.53(2)(b)
(b) The department shall hold a public informational hearing and a public comment period of at least 30 days on the draft list of assessments and any proposed changes to the section 303 (d) list. The department shall provide notice of the public informational hearing and information regarding where written comments may be submitted on its website and through an electronic notification system.
NR 102.53 Note
Note: Prior to the data solicitation period under par. (a), the department provides an opportunity for the public to comment on the assessment guidance. The department generally responds to comments received during the comment periods for the assessment guidance and the draft section 303 (d) list. The department will provide a template for data submittal on the department's waterbody assessment website. The public can subscribe to the electronic notification system for the water quality standards program on the department's home page at
http://dnr.wi.gov/.
NR 102.53(3)
(3)
Submittal of results to U.S. EPA. After the public participation process is completed, the department shall submit waterbody assessment results to U.S. EPA Region 5 by April 1 of every even numbered year for approval. Assessment results shall be submitted in a report that integrates both statewide condition and individual waterbody assessment results to satisfy the requirements of sections 305 (b) and 303 (d) of the Clean Water Act, respectively.
NR 102.53 Note
Note: U.S. EPA has authority to approve or disapprove the section 303 (d) list.
NR 102.53(4)
(4)
Publication of the final section 303 (d) list. The U.S. EPA-approved section 303 (d) list shall be made public and available on the department's website.
NR 102.53 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.54
NR 102.54 Biological assessment of designated uses. Biological assessments conducted under this subchapter are used to determine attainment of designated uses by documenting the health of aquatic biological communities and any observed effects of degradation as described under s.
NR 102.51 (2) (b) 2. If a biological assessment threshold under this subchapter is not attained, the waterbody may be considered as not attaining the applicable designated use.
NR 102.54 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.55
NR 102.55 Narrative biological assessment thresholds for aquatic life uses. NR 102.55(1)
(1)
General. This section establishes narrative biological assessment thresholds that characterize the biological community condition and that are used to measure attainment of aquatic life designated uses specified in s.
NR 102.04 (3) for surface waters. This section also establishes methods for evaluating attainment of narrative assessment thresholds.
NR 102.55(2)
(2)
Narrative biological assessment thresholds. NR 102.55(2)(a)
(a) The aquatic life uses under s.
NR 102.04 (3), except for those specified in s.
NR 102.04 (3) (d) to
(e), shall be considered suitable for the protection and propagation of a balanced aquatic life community. Those uses are intended to support the growth, development, reproduction, and life cycle of the aquatic life communities for their designated aquatic life use categories, although such waters may exhibit moderate changes in aquatic life community structure due to loss of some rare native taxa or shifts in relative abundance. In determining attainment of a waterbody's designated uses, the department may compare its biological quality to the range of quality found in similar waterbodies under natural conditions. A waterbody with distinct natural characteristics that result in an aquatic life community different from or less diverse than other waters in the same use category may be considered attaining its aquatic life use if those differences are clearly related to natural characteristics.
NR 102.55(2)(b)
(b) A surface water that does not support a balanced aquatic life community as designated under s.
NR 102.04 (3) (d) to
(e) shall support its highest attainable use given its habitat and potential.
NR 102.55(2)(c)
(c) A surface water shall maintain at least the highest biological condition it has achieved since 1975.
NR 102.55 Note
Note: Paragraphs (b) and (c) reflect federal requirements under
40 CFR s. 131.10 (g), pertaining to highest attainable uses, and
40 CFR s. 131.3 (e), specifying November 28, 1975 as the benchmark date from which to determine “existing uses” for aquatic life.
NR 102.55 Note
Note: Examples of waterbodies with distinct natural characteristics are wetland-dominated streams, naturally acidic bog lakes, and ephemeral streams with only small areas of short-term refugia. Biological condition assessments should not be conducted during periods when there is insufficient water due to natural conditions to support aquatic life.
NR 102.55(3)
(3)
Assessment methods for narrative biological thresholds. Biological assessments for determining attainment of designated uses may be conducted in accordance with the assessment protocols specified in s.
NR 102.52 and may include any of the following:
NR 102.55(3)(a)
(a)
Biological community assessments. To conduct biological community assessments, the department shall use documented methods that have undergone technical review and produce consistent, objective, and repeatable results that account for methodological uncertainty and natural environmental variability. Such methods include indices of biological integrity or similar tools calculated from measured attributes of resident fish, aquatic invertebrates, aquatic plants, or other aquatic communities. Such indices or tools may include measures of species composition, diversity, and abundance; feeding and reproduction characteristics; condition of individual organisms; or other scientifically objective, credible, and supportable factors. Historic records of native species may also be used to assess whether a waterbody exhibits loss of native species.
NR 102.55(3)(b)
(b)
Biological integrity trends. All surface waters shall maintain existing biological integrity, such that no waterbody or portion thereof shall experience a significant declining trend since 1975 using indicators under par.
(a) or other indicators of biological condition, as demonstrated through scientifically-based documentation.
NR 102.55 Note
Note: An example of methods the department uses for assessing biological health of surface waters are those found in the department's guidance for waterbody assessments, “Wisconsin Consolidated Assessment and Listing Methodology,” or WisCALM. Protocols for assessing attainment of biological assessment thresholds using metrics such as fish or macroinvertebrate indices of biotic integrity or the macrophyte assessment of condition are contained in, or referenced in, WisCALM. WisCALM is available on the department's surface water assessment website at
https://dnr.wi.gov/topic/SurfaceWater/assessments.html and is updated every 2 years with public input.
NR 102.55 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.56
NR 102.56 Numeric biological assessment thresholds for lakes, reservoirs and impounded flowing waters. This section contains numeric biological assessment thresholds for evaluating the biological condition of lakes, reservoirs, and impounded flowing waters and determining whether applicable designated uses are being attained. Numeric biological assessment thresholds used to assess attainment of designated uses include all of the following:
NR 102.56(1)(a)1.a.a. A lake or reservoir other than a stratified two-story fishery lake is not attaining its aquatic life use if its arithmetic mean suspended chlorophyll
a concentration exceeds 27 ug/L.
NR 102.56(1)(a)1.b.
b. A two-story fishery lake is not attaining its aquatic life use if its arithmetic mean suspended chlorophyll
a concentration exceeds 8 ug/L.
NR 102.56(1)(a)2.
2. `Assessment methods.' Data requirements for chlorophyll a are the same as those specified for phosphorus in s.
NR 102.07 (1) (a), except that the sampling period for chlorophyll
a is July 15 to September 15. To determine attainment of the chlorophyll
a threshold under subd.
1., the department shall compare the waterbody's mean suspended chlorophyll
a concentration during the sampling period to the threshold, using the confidence interval approach described under s.
NR 102.52 (2) (b) to
(c) to determine if additional samples are needed.
NR 102.56 Note
Note: The aquatic life chlorophyll a thresholds do not apply to streams, rivers, or impounded flowing waters, as they were established based on lake trophic status levels.
NR 102.56(1)(b)1.1. `Assessment thresholds.' Thresholds for evaluating the general health of an aquatic plant community in a lake or reservoir to determine whether its aquatic life use is attained are shown in Table 8. Thresholds used in the macrophyte assessment of condition indicate the acceptable percentage of a lake or reservoir's vegetated area supporting species that are in each of three tolerance categories. The tolerance categories specify whether a plant species is sensitive to, moderately tolerant of, or tolerant of disturbance.
Table 8
1In Table 8, northern lakes are those north of 44.84707°N latitude, and southern lakes are those south of that latitude. These thresholds do not apply to the Great Lakes or lakes less than 5 acres in surface area.
NR 102.56(1)(b)2.
2. `Assessment methods.' The percentage of a lake or reservoir's vegetated area supporting each tolerance category shall be determined using department-approved protocols for assessing macrophyte condition. The sampling period for southern lakes is June 15 to September 15, and for northern lakes is July 1 to August 31 unless the department determines that an extension from June 15 to September 15 is appropriate during warmer than average years. The department shall consider the threshold attained if the most recent plant survey conducted within the past 10 years, or other more representative survey, attains the applicable threshold in Table 8.
NR 102.56 Note
Note: Examples of department-approved sampling protocols include the “Recommended Baseline Monitoring of Aquatic Plants in Wisconsin,” available on the department's website in the Electronic Guidance and Documents (EGAD) system at
https://dnr.wi.gov/water/egadsearch.aspx. Examples of department-approved analysis protocols include the “Macrophyte Assessment of Condition – General” (MAC-Gen) for general condition assessments applicable to this section, and the “Macrophyte Assessment of Condition – Phosphorus” (MAC-P) for phosphorus-specific assessments under s.
NR 102.60 (2) (c). Each MAC protocol contains the tolerance groups assigned to each species. MAC-Gen and MAC-P scores can be obtained by contacting the department at
DNRSWIMS@wisconsin.gov and submitting aquatic plant data collected and formatted according to department specifications. Computer programming script written in the R language to compute the MAC calculations can be obtained through the department's Water Evaluation Section by contacting the department's call center at 1-888-WDNRINFo (1-888-936-7463) or using options provided on its website at
https://dnr.wi.gov/contact/.
NR 102.56(2)(a)
(a)
Definition. In this section, “moderate algae level” means a chlorophyll
a concentration of 20 ug/L or greater.
NR 102.56(2)(b)
(b)
Frequency of moderate algae levels. Thresholds in Table 9 shall be used when determining if a lake, reservoir, or impounded flowing water is attaining its recreational use.
Table 9
1 Terms used for waterbody types and subcategories are defined in s. NR 102.03.
2 Summer sampling period is July 15 to September 15.
NR 102.56 Note
Note: Lakes and reservoirs are subcategorized based on both their stratification status (stratified vs. unstratified) and whether or not they have an outlet stream or river (drainage vs. seepage). To find a lake or reservoir's subcategory, also known as its natural community, go to the department's Surface Water Data Viewer online map at
https://dnr.wi.gov/topic/surfacewater/swdv/ and turn on the layer for Surface Water: Lake Natural Communities. On the natural communities layer, unstratified is referred to as “shallow,” and stratified is referred to as “deep.” Headwater and lowland lakes are types of drainage lakes.
NR 102.56 Note
Note: The U.S. EPA has set human health swimming advisory levels for microcystin and cylindrospermopsin that accurately reflect the latest scientific information on the potential human health effects from recreational exposure to these two cyanotoxins. The department recommends that local and tribal public health agencies use these swimming advisory levels for notification purposes in recreational waters to protect the public. More information can be found at
https://dnr.wisconsin.gov/topic/lakes/bluegreenalgae.
NR 102.56(2)(c)
(c)
Assessment methods. Data requirements for chlorophyll
a are the same as those specified for phosphorus in s.
NR 102.07 (1) (a), except that the sampling period for chlorophyll
a in all waterbody types is July 15 to September 15.
To determine attainment of the threshold, the department shall determine a waterbody's frequency of moderate algae levels during the chlorophyll
a summer sampling period using the confidence interval for a percentile of a normal distribution, and use the approach described under s.
NR 102.52 (2) (b) and
(c) to compare that frequency to the applicable threshold in Table 9.
NR 102.56 Note
Note: The statistical calculation for determining the frequency of moderate algae levels is contained in Wisconsin's Consolidated Assessment and Listing Methodology (WisCALM) guidance document.
NR 102.56 History
History: CR 19-094: cr.
Register September 2022 No. 801, eff. 10-1-22.
NR 102.60
NR 102.60 Combined assessment procedure for phosphorus. NR 102.60(1)(a)(a) This section establishes a combined assessment approach for making total phosphorus attainment determinations for surface waters in cases specified in par.
(b). This approach is designed to account for variability in how waterbodies respond to phosphorus. The combined approach evaluates a waterbody's quality by considering the total phosphorus concentration in the surface water in conjunction with an evaluation of the phosphorus response indicators specified in subs.
(2) to
(4). The phosphorus response indicators characterize the condition or abundance of aquatic organisms that are responsive to total phosphorus to determine whether aquatic life and recreation uses are being met. Together, the total phosphorus criteria and response indicators may be used to determine whether the phosphorus water quality standards are attained or whether the waterbody should be listed as impaired for total phosphorus on the section 303 (d) list.
NR 102.60(1)(b)1.1. If a waterbody's calculated total phosphorus concentration exceeds its total phosphorus criterion using the assessment procedure under s.
NR 102.07 and the waterbody's calculated phosphorus concentration is within the combined assessment range shown in Table 10, the department may make the total phosphorus attainment or impairment determination using phosphorus response indicators specified in subs.
(2) to
(4) if sufficient biological data are available to conduct these assessments. In that case, the following decision protocols apply:
NR 102.60(1)(b)1.a.
a. A waterbody that attains all of its applicable phosphorus response indicators under subs.
(2) to
(4) may be excluded from the section 303 (d) listing of waters impaired for phosphorus.
NR 102.60 Note
Note: If a waterbody is not considered impaired using the combined approach, it may be a candidate for a less stringent phosphorus site-specific criterion under ch.
NR 119. If a waterbody attains its phosphorus criterion but one or more phosphorus response indicators are not attained, it may be a candidate for a more stringent site-specific phosphorus criterion under ch.
NR 119.
NR 102.60(1)(b)1.b.
b. If a waterbody does not attain one or more of the applicable phosphorus response indicators in subs.
(2) to
(4) or if the department does not have sufficient data to evaluate all of the applicable response indicators, then the waterbody shall be considered impaired for total phosphorus and the department shall propose inclusion of the waterbody on the section 303 (d) list as not attaining its phosphorus criterion. As part of the public comment period for the section 303 (d) list, the department shall provide a list of waterbodies needing additional data to determine whether phosphorus response indicators are met. If sufficient phosphorus response indicator data becomes available in the future, the waterbody may be reassessed.
NR 102.60(1)(b)2.
2. If a waterbody's calculated phosphorus concentration exceeds its total phosphorus criterion using the assessment procedure under s.
NR 102.07 and the waterbody's calculated phosphorus concentration also exceeds the upper limit of the combined assessment range shown in Table 10, then the waterbody shall be considered impaired for total phosphorus regardless of attainment of phosphorus response indicators, and the department shall propose to include the waterbody on the section 303 (d) list.
Table 10
1To determine whether a waterbody falls into the combined approach range, compare the lower confidence limit of the waterbody's two-sided 80% confidence interval around the mean (for lakes/rivers) or median (for rivers/streams) total phosphorus concentration to the ranges in the table.
2 For streams and rivers the combined criteria range is between the applicable total phosphorus criterion and two times that criterion. For lakes, the range is between the applicable total phosphorus criterion and 1.5 times that criterion. If a waterbody has an approved site-specific phosphorus criteria, the combined criteria range for that waterbody shall be calculated using these multiplication factors.
NR 102.60(2)
(2)
Lake and reservoir phosphorus response indicators. A lake or reservoir 5 acres or greater for which the total phosphorus concentration is within the combined approach range specified in Table 10 shall be listed on the section 303 (d) list as impaired for phosphorus unless it attains all of the following phosphorus response indicators:
NR 102.60(2)(a)
(a)
Frequency of moderate algae levels. The biological assessment thresholds for frequency of moderate algae levels to attain recreation uses as specified in s.
NR 102.56 (2).
