Chapter NR 111

NR 111.16(1) (1) Protection of threatened and endangered species and federally designated critical habitat. A WPDES permit for a facility subject to this chapter may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to threatened and endangered species and federally designated critical habitat, or avoid jeopardizing threatened and endangered species or destroying or adversely modifying federally designated critical habitat, for example prey base. The control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. fish and wildlife service during the 60-day review period under sub. (3) or the public notice and comment period. When established in the permit by the department, the owner or operator shall implement any such requirements. The department may include the additional permit requirements if at least one of the following applies:

NR 111.16(1)(a) (a) Based on information submitted to the department by any fishery management agency or other relevant information, there are migratory, sport, or commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure.

NR 111.16(1)(b) (b) It is determined by the department, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to listed and proposed threatened and endangered species, and federally designated and proposed critical habitat.

NR 111.16(2) (2) Supplemental technologies and monitoring. The department may require additional technologies for protection of fragile species and may require additional monitoring of species of fish and shellfish not already required under s. NR 111.42 (1). The department may consider data submitted by other interested parties. The department may also require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.

NR 111.16(3) (3) U.S. fish and wildlife service review. The department shall transmit all permit applications for facilities subject to this subchapter to the appropriate field office of the U.S. fish and wildlife service upon receipt for a 60-day review prior to public notice of the draft or proposed permit. The department shall provide the public notice and an opportunity to comment as required under s. 283.39, Stats., and shall submit a copy of the fact sheet, the permit application, and the draft permit to the appropriate field office of the U.S. fish and wildlife service. This includes notice of specific cooling water intake structure requirements, notice of the draft permit, and any specific information the department has about federal threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for the species and habitat.

NR 111.16(4) (4) Take disclaimer.

NR 111.16(4)(a) (a) Nothing in this chapter authorizes take, as defined in 16 USC 1532 (19) and s. 29.604, Stats., of federally or state listed threatened or endangered species of fish or wildlife. Such take is prohibited under the federal endangered species act unless it is exempted under 16 USC 1536 (o) or permitted under 16 USC 1539 (a) and is prohibited under s. 29.604, Stats., unless it is permitted or authorized under s. 29.604 (6m) or (6r), Stats. Absent an exemption, authorization, or permit, any facility operating under the authority of this chapter may not take threatened or endangered wildlife.

NR 111.16(4)(b) (b) Permits for facilities with cooling water intake structures shall include the following language as a permit condition: “Nothing in this permit authorizes take for the purposes of a facility’s compliance with the Endangered Species Act or with Wisconsin’s endangered species law.”

NR 111.16 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

subch. III of ch. NR 111 Subchapter III — New Facilities

NR 111.20 NR 111.20 Requirement to comply with performance standards.

NR 111.20(1) (1) The owner or operator of a new facility that meets the applicability criteria under s. NR 111.02 shall comply with all of the following:

NR 111.20(1)(a) (a) Adhere to track I or track II performance standards for impingement mortality and entrainment under s. NR 111.21 (2) (a) or (b), including any more stringent measures required under s. NR 111.21 (3). Less stringent standards may be approved as specified in s. NR 111.21 (4).

NR 111.20(1)(b) (b) Submit and retain permit application and supporting information as specified in s. NR 111.40 (1).

NR 111.20(1)(c) (c) Conduct compliance monitoring as specified in s. NR 111.22.

NR 111.20(1)(d) (d) Report information and data and keep records as specified in s. NR 111.23.

NR 111.20(2) (2) The requirements specified in sub. (1) shall be implemented through a WPDES permit for each facility subject to this subchapter. Based on the information submitted in the permit application, the department shall determine the requirements and conditions to include in the permit.

NR 111.20 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.21 NR 111.21 Performance standards.

NR 111.21(1) (1) Generally. Based upon the information submitted by the owner or operator of the facility under s. NR 111.41 and on the track specified in sub. (2) (a) or (b) with which the owner or operator of the facility has chosen to comply, the department shall determine the appropriate requirements and conditions to include in the permit. At a minimum, the permit conditions shall include the applicable performance standards and requirements specified in sub. (2) (a) or (b), may include standards and requirements specified in sub. (3) and may include standards and requirements based on sub. (4) in lieu of those specified in subs. (1) to (3).

NR 111.21(2) (2) Track I or II requirements for new facilities. A owner or operator of the facility shall, except as provided in sub. (4) and subject to sub. (3), comply with one of the following:

NR 111.21(2)(a) (a) Track I requirements. All of the following for a facility choosing track I:

NR 111.21(2)(a)1. 1. If the new facility will withdraw greater than or equal to 10 MGD DIF, the total design intake flow, at a minimum, shall be reduced to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.

NR 111.21(2)(a)2. 2. Each cooling water intake structure shall be designed and constructed to a maximum design intake velocity of 0.5 feet per second.

NR 111.21(2)(a)3. 3. The cumulative DIF of all cooling water intake structures at the facility shall meet the following requirements:

NR 111.21(2)(a)3.a. a. For cooling water intake structures located in a river or stream, the total DIF shall be no greater than 5 percent of the source water annual mean flow.

NR 111.21(2)(a)3.b. b. For cooling water intake structures located in a lake or reservoir, the total DIF may not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency. In determining whether or not disruption will occur, the department shall consider anthropogenic factors unrelated to the new facility’s cooling water intake structure that can influence the occurrence and location of a thermocline, including source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow and level management practices.

NR 111.21(2)(a)4. 4. The owner or operator of the facility shall select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if any of the following occur:

NR 111.21(2)(a)4.a. a. Threatened, endangered, or otherwise protected federal, state, or tribal species or federally designated critical habitat for these species are present within the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)4.b. b. Based on information submitted by any fishery management agency or other relevant information, there are migratory, sport, or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)4.c. c. It is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements specified in subds. 1. to 3., would still contribute unacceptable stress to the protected species, federally designated critical habitat of those species, or species of concern to the department.

NR 111.21(2)(a)5. 5. The owner or operator of the facility shall select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if any of the following occur:

NR 111.21(2)(a)5.a. a. The new facility has not already reduced its design intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.

NR 111.21(2)(a)5.b. b. There are threatened, endangered, or otherwise protected federal, state, or tribal species or federally designated critical habitat for these species within the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)5.c. c. Based on information submitted by any fishery management agency or other relevant information, there are, or will be upon commencement of operation, undesirable cumulative stressors affecting entrainable life stages of species of concern to the department and the department determines that the proposed facility, after meeting the technology-based performance requirements specified in subds. 1. to 3., would contribute unacceptable stress to the protected species, federally designated critical habitat of those species, or the species of concern.

NR 111.21(2)(b) (b) Track II requirements. All of the following for a facility choosing track II:

NR 111.21(2)(b)1. 1. The owner or operator of the facility shall demonstrate to the department that the technologies employed will reduce the level of adverse environmental impact from the cooling water intake structures to a level comparable to that which would be achieved were the owner or operator of the facility to implement the requirements specified in par. (a) 1. and 2. This demonstration shall include showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those that would result if the owner or operator of the facility were to implement the requirements specified in par. (a) 1. and 2. The department shall consider information provided by any fishery management agency and may also consider data and information from other sources.

NR 111.21(2)(b)2. 2. The cumulative DIF of all cooling water intake structures at the facility shall meet the following requirements:

NR 111.21(2)(b)2.a. a. For cooling water intake structures located in a river or stream, the total DIF shall be no greater than 5 percent of the source water annual mean flow.

NR 111.21(2)(b)2.b. b. For cooling water intake structures located in a lake or reservoir, the total DIF shall not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency. In determining whether or not disruption will occur, the department shall consider anthropogenic factors unrelated to the new facility’s cooling water intake structure that can influence the occurrence and location of a thermocline, including source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow and level management practices.

NR 111.21(3) (3) More stringent standards. The owner or operator of the facility shall comply with any requirements that are more stringent than those under sub. (2) relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements at a new facility that the department deems are necessary to comply with any provision of state law including applicable water quality standards.

NR 111.21(4) (4) Alternative requirements. Upon request, alternative requirements less stringent than those specified in subs. (2) and (3) may be imposed in the permit. The department may establish alternative less stringent requirements only if all of the following are demonstrated by the person requesting the alternative requirements:

NR 111.21(4)(a) (a) There is an applicable requirement under sub. (2) or (3).

NR 111.21(4)(b) (b) The department determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs U.S. environmental protection agency considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, local water resources other than impingement or entrainment, or local energy markets.

NR 111.21(4)(c) (c) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local air quality, local water resources other than impingement or entrainment, or local energy markets.

NR 111.21(4)(d) (d) The alternative requirement will ensure compliance with other applicable provisions of the federal clean water act and any applicable requirement of state or tribal law.

NR 111.21 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.22 NR 111.22 Monitoring requirements. An owner or operator of a facility to which this subchapter applies shall perform all of the following monitoring:

NR 111.22(1) (1) Biological monitoring.

NR 111.22(1)(a) (a) Impingement and entrainment monitoring. The owner or operator of the facility shall monitor both impingement and entrainment of the commercial, recreational, and forage base fish and shellfish species identified in either the source water baseline biological characterization data required under s. NR 111.41 (3) or the comprehensive demonstration study required under s. NR 111.41 (19), depending on whether the owner or operator of the facility chooses to comply with s. NR 111.21 (2) (a) or (b).

NR 111.22(1)(b) (b) Impingement and entrainment monitoring methods. The monitoring methods used shall be consistent with those used for the source water baseline biological characterization data required under s. NR 111.41 (3) or the comprehensive demonstration study required under s. NR 111.41 (19).

NR 111.22(1)(c) (c) Impingement and entrainment monitoring frequency. The owner or operator of the facility shall monitor at the frequencies identified in pars. (d) to (f) for at least two years after the initial permit issuance. After that time, the department may approve a request for less frequent sampling in the remaining years of the permit term and when the permit is reissued, if the department determines the supporting data show that less frequent monitoring would still allow for the detection of any seasonal and daily variations in the species and numbers of individuals that are impinged or entrained.

NR 111.22(1)(d) (d) Impingement sampling. The owner or operator of the facility shall collect samples to monitor impingement rates for each species over a 24-hour period and no less than once per month when the cooling water intake structure is in operation.

NR 111.22(1)(e) (e) Entrainment sampling. The owner or operator of the facility shall collect samples at least every other week to monitor entrainment rates for each species over a 24-hour period during the primary period of reproduction, larval recruitment, and peak abundance, as identified by the department. Samples shall be collected only when the cooling water intake structure is in operation.

NR 111.22(1)(f) (f) Authority to modify. The department may modify the monitoring program when the permit is reissued and during the term of the permit based on changes in physical or biological conditions in the vicinity of the cooling water intake structure. The department may require continued monitoring based on the results of the verification monitoring plan in the track II comprehensive demonstration study required under s. NR 111.41 (19) (c) 3.

NR 111.22(2) (2) Velocity monitoring. An owner or operator of the facility using surface water intake screen systems shall continuously monitor head loss across the screens and correlate the measured value with the design intake velocity. The head loss across the intake screen shall be measured at the minimum ambient source water surface elevation, based on the Q7,10 flow or the department’s best professional judgment and available hydrological data. The maximum head loss across the screen for each cooling water intake structure shall be used to determine compliance with the velocity requirement specified in s. NR 111.21 (2) (a) 2. An alternate frequency for monitoring head loss or velocity may be approved by the department if continuous monitoring would be infeasible or overly burdensome. The alternate frequency shall at a minimum monitor head loss or velocity during initial facility startup and thereafter at the frequency specified in the WPDES permit but no less than once per quarter. An owner or operator of the facility using devices other than surface intake screens shall monitor velocity at the point of entry through that device.

NR 111.22(3) (3) Flow rate monitoring. The owner or operator of the facility shall monitor the total volume of water withdrawn and the percent used for cooling on a daily basis. Alternatively, an owner or operator of a facility may report percent of flow used for cooling on a less frequent basis if daily monitoring is infeasible or overly burdensome and if the department approves an alternate method of estimating this value. Additionally, if applicable, make-up water and blowdown daily flow rates shall be monitored. The department may require additional monitoring necessary to demonstrate compliance with s. NR 111.21.

NR 111.22(4) (4) Visual or remote inspections. The owner or operator of the facility shall either conduct visual inspections or employ remote monitoring devices during the period the cooling water intake structure is in operation. Such inspections shall be performed at least weekly to ensure that any design and construction technologies required in s. NR 111.21 are maintained and operated to ensure that they will continue to function as designed.

NR 111.22(5) (5) Track II facilities. Facilities that choose to comply with the track II requirements under s. NR 111.21 (2) (b) shall also comply with the verification monitoring plan requirements specified in s. NR 111.41 (19) (c) 3.

NR 111.22 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.23 NR 111.23 Recordkeeping and reporting requirements. The owner or operator of the facility shall report and keep records according to all of the following requirements:

NR 111.23(1) (1) The owner or operator of the facility shall keep records of all the data used to complete the permit application and show compliance with the requirements, any supplemental information developed for the permit application materials, and any compliance monitoring data submitted under s. NR 111.22 for a period of at least 3 years from the date of permit issuance. The department may require that these records be kept for a longer period.

NR 111.23(2) (2) The owner or operator of the facility shall provide all of the following information to the department in a yearly status report:

NR 111.23(2)(a) (a) Biological monitoring records for each cooling water intake structure as required under s. NR 111.22 (1).

NR 111.23(2)(b) (b) Velocity and head loss monitoring records for each cooling water intake structure as required under s. NR 111.22 (2).

NR 111.23(2)(c) (c) Records of visual or remote inspections as required under s. NR 111.22 (4).

NR 111.23 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.24 NR 111.24 Review of design and construction technologies to minimize impingement mortality and entrainment.

NR 111.24(1) (1) Track I. All of the following department actions are required for track I new facilities:

NR 111.24(1)(a) (a) The department shall review the information submitted under s. NR 111.41 (18) to evaluate the suitability and feasibility of the technology proposed to minimize impingement mortality and entrainment of all life stages of fish and shellfish.

NR 111.24(1)(b) (b) In the first permit issued to a new facility, the department shall include a condition requiring the facility to reduce impingement mortality and entrainment commensurate with the implementation of the technologies in the permit.

NR 111.24(1)(c) (c) In permit reissuances, the department shall review the performance of the technologies implemented and require additional or different technologies if needed to minimize impingement mortality and entrainment of all life stages of fish and shellfish.

NR 111.24(1)(d) (d) The department shall consider whether more stringent conditions are reasonably necessary in accordance with s. NR 111.21 (3).

NR 111.24(2) (2) Track II. All of the following department actions are required for track II new facilities:

NR 111.24(2)(a) (a) The department shall review the information submitted under s. NR 111.41 (19) and evaluate the suitability of the proposed technologies and operational measures to determine whether or not they will reduce both impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that could be achieved through track I. If the department determines they do not, the owner or operator of the facility shall further reduce the level of adverse environmental impact from the cooling water intake structure to such a level before the permit may be issued.

NR 111.24(2)(b) (b) In permit reissuances, the department shall review the performance of the additional or different technologies or measures used and determine whether or not they reduce the level of adverse environmental impact from the cooling water intake structure to a comparable level that the facility would achieve were it to implement the requirements specified in s. NR 111.21 (2) (a) 1. and 2. If the department determines they do not, the owner or operator of the facility shall further reduce the level of adverse environmental impact from the cooling water intake structure to a comparable level that the facility would achieve were it to implement the requirements specified in s. NR 111.21 (2) (a) 1. and 2.

NR 111.24 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.25 NR 111.25 Timing.

NR 111.25(1) (1) Compliance. The owner or operator of the facility shall comply with the requirements specified in s. NR 111.21 when a WPDES permit containing requirements consistent with this subchapter is issued to the owner or operator of the facility.

NR 111.25(2) (2) Permit application. The department shall review materials submitted by the applicant under s. NR 111.41 at the time of the initial permit application and before each permit renewal or reissuance and shall take all of the following actions:

NR 111.25(2)(a) (a) After receiving the initial permit application from the owner or operator of the facility, the department shall determine the applicable standards specified in s. NR 111.21 to apply to the new facility. In addition, the department shall review materials to determine compliance with the applicable standards.

NR 111.25(2)(b) (b) For each subsequent permit renewal, the department shall review the application materials and monitoring data to determine whether requirements, or additional requirements, for design and construction technologies or operational measures shall be included in the permit.

NR 111.25(2)(c) (c) For track II facilities, the department may review the information collection proposal plan required under s. NR 111.41 (19) (b). The facility may initiate sampling and data collection prior to receiving comment from the department.

NR 111.25 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

subch. IV of ch. NR 111 Subchapter IV — New Units at Existing Facilities

NR 111.30 NR 111.30 Requirement to comply with BTA standards.

NR 111.30(1) (1) The owner or operator of a new unit at an existing facility that meets the applicability criteria specified in s. NR 111.02 shall, at a minimum, comply with all of the following requirements:

NR 111.30(1)(a) (a) Upon commencement of the new unit’s operation, comply with the BTA standards for impingement mortality and entrainment under s. NR 111.31 for all cooling water intake flows used by the new unit. The remainder of the existing facility is subject to the impingement mortality standard under s. NR 111.12 and the entrainment standard under s. NR 111.13. The entire existing facility, including any new units, is subject to any measures to protect threatened and endangered species and federally designated critical habitat established under s. NR 111.16.

NR 111.30(1)(b) (b) Submit and retain the information required under s. NR 111.40 (3) for the new unit to the department no later than 180 days before the planned commencement of cooling water withdrawals for the operation of the new unit. If the owner or operator of the facility has already submitted the required information in a previous permit application, the owner or operator of the facility may choose to submit an update to the required information.