Chapter NR 106

NR 106.71(2) (2) “Balanced, indigenous community” or “balanced, indigenous population” means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species, and non–domination of pollution tolerant species. Such a community may include historically non–native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, the community may not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with effluent limitations and standards effective by July 1, 1983, including modifications thereof in accordance with the provisions of this subchapter; and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to this subchapter.

NR 106.71(3) (3) “Existing discharge” means a discharge that is not a new POTW discharge.

NR 106.71(4) (4) “New discharge” means a discharge that is issued a WPDES permit on or after October 1, 2010.

NR 106.71(5) (5) “Relevant evidence” means new or historical biological data, physical monitoring data and engineering or diffusion models.

NR 106.71(6) (6) “Representative, important species” means species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water receiving a thermal discharge.

NR 106.71(7) (7) “Water quality standards” means applicable water quality standards set forth in chs. NR 102 to 104, or any federally promulgated water quality standards applicable to surface waters of the state.

NR 106.71 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

NR 106.72 NR 106.72 Application for alternative effluent limitations for temperature. An application for an alternative effluent limitation may be submitted to the department by an owner or operator of a point source subject to effluent limitations determined under subch. V.

NR 106.72(1) (1) Timing. The application may be submitted at the time the owner or operator submits an application for issuance or reissuance of a WPDES permit or at any time following the issuance of a permit, subject to the permit modification provisions in s. 283.53, Stats.

NR 106.72(2) (2) New discharge. A permittee may submit an application for alternative effluent limitations for temperature for a new discharge. The application shall include a demonstration that the effluent temperature limitations calculated according to the procedures specified in subch. V are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. This demonstration shall examine the interaction of the thermal component with other pollutants and the additive effect of other thermal sources. The application shall also contain all of the following:

NR 106.72(2)(a) (a) A description of the alternative effluent limitations for temperature requested.

NR 106.72(2)(b) (b) A description of the methodology the applicant used to support the demonstration.

NR 106.72(2)(c) (c) Biological, hydrological and meteorological data, physical monitoring data, engineering or diffusion models, laboratory studies and other relevant evidence.

NR 106.72(2)(d) (d) The data and results of studies, experiments and other information that support the demonstration that the identified representative, important species will be protected, and that will assure the protection and propagation of a balanced, indigenous community of shellfish, fish and aquatic life in and on the body of the water into which the discharge will be made.

NR 106.72(3) (3) Existing discharge. An existing permittee may submit an application for alternative effluent limitations for temperature for an existing discharge. The application shall include a demonstration that the effluent temperature limitations calculated according to the procedures specified in subch. V are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. This demonstration shall examine the interaction of the thermal component with other pollutants and the additive effect of other thermal sources. The permittee may request alternative effluent limitations for temperature under either par. (a) or (b).

NR 106.72(3)(a) (a) A permittee may demonstrate that no appreciable harm has resulted from the normal component of the discharge to a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made. In determining whether or not prior appreciable harm has occurred, the department shall consider the length of time in which the applicant has been discharging and the nature of the discharge.

NR 106.72(3)(b) (b) A permittee may demonstrate that, despite the occurrence of previous appreciable harm, alternative effluent limitations for temperature will assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made.

NR 106.72(3)(c) (c) In the application under this section, the permittee shall provide all of the following:

NR 106.72(3)(c)1. 1. A description of the alternative effluent limitations for temperature requested.

NR 106.72(3)(c)2. 2. A description of the methodology the applicant used to support the demonstration.

NR 106.72(3)(c)3. 3. Biological, hydrological and meteorological data, physical monitoring data, engineering or diffusion models and laboratory studies and other relevant evidence.

NR 106.72(3)(c)4. 4. The data and results of studies, experiments and other information that support the demonstration that the identified representative, important species will be protected, and that will assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and aquatic life in and on the water to which the discharge has been made.

NR 106.72 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

NR 106.73 NR 106.73 Identification of representative, important species. Any applicant for an alternative effluent limitation for temperature shall submit to the department a proposed list of representative important species prior to submitting an application and undertaking a demonstration under s. NR 106.72. The list shall take into account applicable water quality standards. The department may approve, disapprove or approve with modifications the proposed list of representative important species as the department deems appropriate.

NR 106.73 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

NR 106.74 NR 106.74 Determination of alternative effluent limitations for temperature.

NR 106.74(1) (1) New discharges. Alternative effluent limitations for temperature may be established by the department for a new discharge if the permittee demonstrates that the discharge, considering the cumulative impact of the thermal discharge together with all other significant impacts on the species affected will assure the protection and propagation of representative, important species and will, in turn, assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and aquatic life in and on the body of receiving water.

NR 106.74(2) (2) Existing discharges. Alternative effluent limitations for temperature may be established by the department for an existing discharge if the permittee has demonstrated either of the following:

NR 106.74(2)(a) (a) No appreciable harm has resulted from the thermal component of the discharge, taking into account the interaction of the component with other pollutants and the additive effect of other thermal discharges, to the representative, important species and a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water receiving the discharge.

NR 106.74(2)(b) (b) That despite the occurrence of previous appreciable harm, alternative effluent limitations for temperature will assure the protection and propagation of the representative, important species and a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into receiving the discharge, taking into account the interaction of the thermal component with other pollutants and the additive effect of other thermal discharges.

NR 106.74(3) (3) Appreciable harm. In determining whether appreciable harm has occurred the department shall consider any relevant biological, engineering or other data demonstrating that effluent limitations for temperature calculated using the procedures specified in subch. V are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water receiving the discharge.

NR 106.74(4) (4) Existing variance water limitations. Alternative effluent limitations for temperature determined under this subchapter shall supersede any temperature limitations listed in s. NR 104.06 (2) (b).

NR 106.74(5) (5) Zebra mussel control. Alternative effluent limitations for temperature determined under this subchapter shall be met, except for short-term excursions for zebra or other mussel control, as approved by the department and authorized in a permit on a case-by-case basis.

NR 106.74 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

NR 106.75 NR 106.75 Compliance schedules. Whenever the department issues or modifies a permit with alternative effluent limitations for temperature established using the procedures in this subchapter, the permit may contain a compliance schedule consistent with the provisions in s. NR 106.117 to attain such limitations. The permittee shall achieve compliance with the limitations as soon as reasonably possible, but no later than the expiration date of the permit.

NR 106.75 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10; CR 15-085: am. Register August 2016 No. 728, eff. 9-1-16.

NR 106.76 NR 106.76 Public notice. The public notice of intent to issue, reissue, or modify a permit with alternative effluent limitations established under this subchapter shall contain all of the following:

NR 106.76(1) (1) The effluent temperature limitations that are calculated using the procedures specified in subch. V.

NR 106.76(2) (2) The proposed alternative effluent limitations for temperature.

NR 106.76(3) (3) A statement that the applicant has submitted a demonstration in support of a request for alternative effluent limitations for temperature and that the department is proposing to establish such alternative effluent limitations for temperature or, in the event that at the time of permit issuance, reissuance or modification there is insufficient information to support alternative effluent limitations for temperature, that the department is proposing to include a compliance schedule in the permit.

NR 106.76(4) (4) A statement that all data submitted by the applicant and a summary of the data are available at the offices of the department for public inspection during office hours.

NR 106.76(5) (5) A statement that any interested person may comment upon the applicant’s proposed alternative effluent limitations for temperature.

NR 106.76 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

NR 106.77 NR 106.77 Application of the variance process in s. 283.15, Stats. Whenever a permittee has been granted alternative effluent limitations for temperature under this chapter, the procedures of s. 283.15, Stats., are not applicable.

NR 106.77 History History: CR 07-111: cr. Register September 2010 No. 657, eff. 10-1-10.

subch. VII of ch. NR 106 Subchapter VII — Effluent Limitations for Chloride Discharges

NR 106.80 NR 106.80 Purpose. The purpose of this subchapter is to specify how the department will regulate the discharge of chloride to surface waters of the state. Nothing in this subchapter shall be construed to prevent or prohibit the use, sale, rental, installation, and service of ion exchange water softeners.

NR 106.80 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00.

NR 106.81 NR 106.81 Applicability. The provisions of this subchapter are applicable to point sources which discharge wastewater containing chloride to surface waters of the state. The provisions of this subchapter are not applicable to discharges of storm water run-off regulated by a storm water permit.

NR 106.81 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00.

NR 106.82 NR 106.82 Definitions. In this subchapter:

NR 106.82(1) (1) “Calculated limitation” means a chloride water quality-based effluent limitation.

NR 106.82(2) (2) “Consistently meet” means that 95% of the representative effluent data are less than the calculated limitation.

NR 106.82(3) (3) “DIR” means demand initiated regeneration.

NR 106.82(4) (4) “Daily maximum interim limitation” means an effluent limitation calculated by the department which may be either:

NR 106.82(4)(a) (a) The upper 99th percentile of the permittee’s representative data available to the department, or

NR 106.82(4)(b) (b) A value no greater than 105% of the permittee’s highest representative effluent datum.

NR 106.82(5) (5) “Reasonably meet” means that all of the permittee’s representative effluent data would, using appropriate statistical techniques, be expected to be less than or equal to the target limitation following the completion of all of the source reduction efforts required by the permit.

NR 106.82(6) (6) “Representative effluent data” means data, above the level of detection, which is not serially correlated and which represents normally expected effluent concentrations of chloride, collected during a period that can represent current or expected operations, or both, within the term of the permit.

NR 106.82(7) (7) “Target limitation” means an effluent limitation which the permittee can reasonably meet within the term of the permit, following implementation of appropriate voluntary source reduction activities.

NR 106.82(8) (8) “Target value” means an effluent concentration of chlorides which a permittee may be expected to reasonably meet following implementation of appropriate voluntary source reduction activities. A target value is not an enforceable limitation under the terms of the permit program, but establishes a measure of progress of source reduction activities.

NR 106.82(9) (9) “Weekly average interim limitation” means an effluent limitation calculated by the department which may be either:

NR 106.82(9)(a) (a) The upper 99th percentile of the permittee’s 4-day average of the representative data available to the department, or

NR 106.82(9)(b) (b) A value no greater than 105% of the permittee’s calculated highest weekly average of the representative effluent data.

NR 106.82(10) (10) “WPDES” means Wisconsin pollutant discharge elimination system.

NR 106.82 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00.

NR 106.83 NR 106.83 Regulation of chloride discharges.

NR 106.83(1) (1) Chloride effluent limitations. The department shall evaluate the need to establish effluent limitations for chloride whenever representative effluent data indicate that the discharge from a point source contains chloride. If the department determines that a water quality-based effluent limitation for chloride is needed, a calculated limitation as defined in s. NR 106.82 (1) shall be included in the permit to meet the applicable water quality standards specified in chs. NR 102 to 105, unless a chloride variance is given pursuant to sub. (2).

NR 106.83(2) (2) Chloride variance.

NR 106.83(2)(a) (a) Findings. On February 1, 2000, the department finds that:

NR 106.83(2)(a)1. 1. End-of-pipe wastewater treatment technology for chloride is prohibitively expensive;

NR 106.83(2)(a)2. 2. End-of-pipe wastewater treatment technology for chloride produces a concentrated brine that can be as much or more of an environmental liability than the untreated effluent;

NR 106.83(2)(a)3. 3. Appropriate chloride source reduction activities are preferable environmentally to end-of-pipe effluent treatment in most cases; and

NR 106.83(2)(a)4. 4. For some dischargers, attaining the applicable water quality standards specified in chs. NR 102 to 105 may cause substantial and widespread adverse social and economic impacts in the area where the discharger is located.

NR 106.83(2)(a)5. 5. These findings shall be reviewed by the department every 3 years.

NR 106.83(2)(b) (b) Application. An existing discharger seeking a chloride variance under this subsection shall submit an application for a chloride variance when it submits its application for permit reissuance. The application shall include the permittee’s basis for concluding that the findings in sub. (2) (a) for a chloride variance are applicable to its discharge.

NR 106.83(2)(c) (c) Department determinations. The department shall review the application submitted by the permittee. The application shall be approved if the department agrees with the permittee’s basis for concluding that the findings under par. (a) for a chloride variance are applicable to its discharge. The department shall obtain U.S. environmental protection agency approval before a variance is included in a permit under this subsection.

NR 106.83(2)(d) (d) Permit conditions implementing a chloride variance. The department shall grant a chloride variance to an existing discharger when:

NR 106.83(2)(d)1. 1. The findings in par. (a) supporting a chloride variance apply to the specific discharge; and

NR 106.83(2)(d)2. 2. The permittee and the department agree upon specific permit language imposing an interim limitation, a target value or, where appropriate, a target limitation, and source reduction activities.

NR 106.83(3) (3) Interim limitations, target values and target limitations and source reduction activities.

NR 106.83(3)(a) (a) If the permittee and the department agree on the inclusion of voluntary source reduction activities and the imposition of an interim limitation and a target value or a target limitation in its permit, those activities and the interim limitation and target value or target limitations shall become permit requirements.

NR 106.83(3)(b) (b) If the permittee and the department cannot agree on voluntary source reduction activities to be included as permit requirements, those activities may not be included in the permit. If the permittee and the department cannot agree on an interim limitation and target value or a target limitation to be included as permit requirements, those limitations may not be included in the permit.

NR 106.83(3)(c) (c) If the permittee and the department cannot agree on voluntary source reduction activities and both an interim limitation and a target value or an interim limitation and a target limitation to be included as permit requirements, the department shall include a calculated limitation as defined in s. NR 106.82 (1) in the permit to meet the applicable water quality standards specified in chs. NR 102 to 105.

NR 106.83(4) (4) Reapplication for a chloride variance. When a permit containing a chloride variance approved by the department under sub. (2) (c) expires, the permittee may reapply for a chloride variance when it submits its application for permit reissuance. The application shall include the permittee’s basis for concluding that the findings in sub. (2) (a) are applicable to its discharge.

NR 106.83(5) (5) Applicability of the variance process in s. 283.15, stats. If a calculated limitation is included in the permit, a permittee may apply to the department for a variance from the water quality standard used to derive the calculated limitation, pursuant to s. 283.15, Stats. Where a permittee has been granted a chloride variance and its permit includes an interim limitation, a target value, a target limitation and requirements for chloride source reduction activities, the provisions of s. 283.15, Stats., are not applicable to the interim and target limitations.

NR 106.83 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00; CR 15-085: am. (2) (c) Register August 2016 No. 728, eff. 9-1-16.

NR 106.84 NR 106.84 Compliance with Wisconsin water quality antidegradation rules when reissuing a permit. Chapter NR 207 does not apply in those instances in which a reissued permit includes effluent limitations for chloride which represent a lowering of concentration as compared to the interim limitation in the previous permit.

NR 106.84 History History: Cr. Register, January, 2000, No. 529, eff. 2-1-00.