Chapter NR 151

NR 151.001 NR 151.001 Purpose. This chapter establishes runoff pollution performance standards for non-agricultural facilities and transportation facilities and performance standards and prohibitions for agricultural facilities and practices designed to achieve water quality standards as required by s. 281.16 (2) and (3), Stats. This chapter also specifies a process for the development and dissemination of department technical standards to implement the non-agricultural performance standards as required by s. 281.16 (2) (b), Stats. If these performance standards and prohibitions do not achieve water quality standards, this chapter specifies how the department may develop targeted performance standards in conformance with s. NR 151.004.

NR 151.001 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.

NR 151.002 NR 151.002 Definitions. In this chapter:

NR 151.002(1) (1) “Adequate sod, or self-sustaining vegetative cover” means maintenance of sufficient vegetation types and densities such that the physical integrity of the streambank or lakeshore is preserved. Self-sustaining vegetative cover includes grasses, forbs, sedges and duff layers of fallen leaves and woody debris.

NR 151.002(2) (2) “Agricultural facilities and practices” has the meaning given in s. 281.16 (1), Stats.

NR 151.002(3) (3) “Average annual rainfall” means a typical calendar year of precipitation as determined by the department for users of models such as SLAMM, P8, or equivalent methodology. The average annual rainfall is chosen from a department publication for the location closest to the municipality.

NR 151.002 Note Note: Information on how to access SLAMM and P8 and the average annual rainfall files for five locations in the state, as published periodically by the department, is available at dnr.wi.gov.

NR 151.002(4) (4) “Best management practices” or “BMPs” means structural or non-structural measures, practices, techniques or devices employed to avoid or minimize soil, sediment or pollutants carried in runoff to waters of the state.

NR 151.002(5) (5) “Combined sewer system” means a system for conveying both sanitary sewage and stormwater runoff.

NR 151.002(6) (6) “Connected imperviousness” means an impervious surface connected to the waters of the state via a separate storm sewer, an impervious flow path, or a minimally pervious flow path.

NR 151.002 Note Note: An example of minimally pervious flow path would be roof runoff flowing across a lawn of less than 20 feet, to the driveway, to the street, and finally to the storm sewer. The department has a guidance document to aid in the application of this term that is available from the department at dnr.wi.gov.

NR 151.002(7) (7) “Construction site” means an area upon which one or more land disturbing construction activities occur, including areas that are part of a larger common plan of development or sale where multiple separate and distinct land disturbing construction activities may be taking place at different times on different schedules but under one plan. A long-range planning document that describes separate construction projects, such as a 20-year transportation improvement plan, is not a common plan of development.

NR 151.002(8) (8) “DATCP” means the department of agriculture, trade and consumer protection.

NR 151.002(9) (9) “Department” means the department of natural resources.

NR 151.002(10) (10) “Design storm” means a hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency and total depth of rainfall.

NR 151.002(11) (11) “Development” means residential, commercial, industrial or institutional land uses and associated roads.

NR 151.002(11m) (11m) “Direct conduits to groundwater” means wells, sinkholes, swallets, fractured bedrock at the surface, mine shafts, non-metallic mines, tile inlets discharging to groundwater, quarries, or depressional groundwater recharge areas over shallow fractured bedrock.

NR 151.002(12) (12) “Effective infiltration area” means the area of the infiltration system that is used to infiltrate runoff and does not include the area used for site access, berms or pretreatment.

NR 151.002(13) (13) “Erosion” means the process by which the land’s surface is worn away by the action of wind, water, ice or gravity.

NR 151.002(14) (14) “Exceptional resource waters” means waters listed in s. NR 102.11.

NR 151.002(14g) (14g) “Existing development” means development in existence on October 1, 2004, or development for which a notice of intent to apply for a storm water permit in accordance with subch. III of ch. NR 216 was received by the department or the department of commerce on or before October 1, 2004.

NR 151.002(14r) (14r) “Filtering layer” means soil that has at least a 3-foot deep layer with at least 20 percent fines; or at least a 5-foot deep layer with at least 10 percent fines; or an engineered soil with an equivalent level of protection as determined by the regulatory authority for the site.

NR 151.002(15) (15) “Final stabilization” means that all land disturbing construction activities at the construction site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70% of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures.

NR 151.002(16) (16) “Illicit discharge” means any discharge to a municipal separate storm sewer that is not composed entirely of runoff, except discharges authorized by a WPDES permit or any other discharge not requiring a WPDES permit such as water line flushing, landscape irrigation, individual residential car washing, fire fighting and similar discharges.

NR 151.002(16m) (16m) “Impaired water” means a waterbody impaired in whole or in part and listed by the department pursuant to 33 USC 1313 (d) (1) (A) and 40 CFR 130.7, for not meeting a water quality standard, including a water quality standard for a specific substance or the waterbody’s designated use.

NR 151.002 Note Note: The impaired waters list is available from the department at dnr.wi.gov.

NR 151.002(17) (17) “Impervious surface” means an area that releases as runoff all or a large portion of the precipitation that falls on it, except for frozen soil. Rooftops, sidewalks, driveways, gravel or paved parking lots, and streets are examples of surfaces that typically are impervious.

NR 151.002(18) (18) “In-fill” means an undeveloped area of land located within an existing urban sewer service area, surrounded by development or development and natural or man-made features where development cannot occur. “In-fill” does not include any undeveloped area that was part of a larger new development for which a notice of intent to apply for a storm water permit in accordance with subch. III of ch. NR 216 was required to be submitted after October 1, 2004, to the department or the department of commerce.

NR 151.002(19) (19) “Infiltration” means the entry and movement of precipitation or runoff into or through soil.

NR 151.002(20) (20) “Infiltration system” means a device or practice such as a basin, trench, rain garden or swale designed specifically to encourage infiltration, but does not include natural infiltration in pervious surfaces such as lawns, redirecting of rooftop downspouts onto lawns or minimal infiltration from practices, such as swales or road side channels designed for conveyance and pollutant removal only.

NR 151.002(22) (22) “Land disturbing construction activity” means any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or non-vegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. Land disturbing construction activity includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities.

NR 151.002(23) (23) “Landowner” means any person holding fee title, an easement or other interest in property, which allows the person to undertake cropping, livestock management, land disturbing construction activity or maintenance of storm water BMPs on the property.

NR 151.002(24) (24) “Local governmental unit” has the meaning given in s. 92.15 (1) (b), Stats.

NR 151.002(25) (25) “MEP” or “maximum extent practicable” means the highest level of performance that is achievable but is not equivalent to a performance standard identified in subch. III or IV, as determined in accordance with s. NR 151.006.

NR 151.002(26) (26) “Municipality” has the meaning given in s. 281.01 (6), Stats.

NR 151.002(27) (27) “Navigable waters” and “navigable waterway” has the meaning given in s. 30.01 (4m), Stats.

NR 151.002(28) (28) “New development” means development resulting from the conversion of previously undeveloped land or agricultural land uses.

NR 151.002(29) (29) “NRCS” means the natural resources conservation service of the U.S. department of agriculture.

NR 151.002(30) (30) “Ordinary high water mark” has the meaning given in s. NR 115.03 (6).

NR 151.002(31) (31) “Outstanding resource waters” means waters listed in s. NR 102.10.

NR 151.002(32) (32) “Percent fines” means the percentage of a given sample of soil, which passes through a # 200 sieve.

NR 151.002 Note Note: Percent fines can be determined using the “American Society for Testing and Materials”, volume 04.02, “Test Method C117-95 Standard Test Method for Materials Finer than 75-mm (No. 200) Sieve in Material Aggregates by Washing”. Copies can be obtained by contacting the American society for testing and materials, 100 Barr Harbor Drive, Conshohocken, PA 19428-2959, or phone [phone], or on line at: http://www.astm.org/.

NR 151.002(33) (33) “Performance standard” means a narrative or measurable number specifying the minimum acceptable outcome for a facility or practice.

NR 151.002(34) (34) “Pervious surface” means an area that releases as runoff a small portion of the precipitation that falls on it. Lawns, gardens, parks, forests or similar vegetated areas are examples of surfaces that typically are pervious.

NR 151.002(35) (35) “Pollutant” has the meaning given in s. 283.01 (13), Stats.

NR 151.002(36) (36) “Pollution” has the meaning given in s. 281.01 (10), Stats.

NR 151.002(37) (37) “Population” has the meaning given in s. 281.66 (1) (c), Stats.

NR 151.002(38) (38) “Preventive action limit” has the meaning given in s. NR 140.05 (17).

NR 151.002(39) (39) “Redevelopment” means areas where development is replacing older development.

NR 151.002(40) (40) “Runoff” means storm water or precipitation including rain, snow, ice melt or similar water that moves on the land surface via sheet or channelized flow.

NR 151.002(41) (41) “Sediment” means settleable solid material that is transported by runoff, suspended within runoff or deposited by runoff away from its original location.

NR 151.002(42) (42) “Separate storm sewer” means a conveyance or system of conveyances including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, constructed channels or storm drains, which meets all of the following criteria:

NR 151.002(42)(a) (a) Is designed or used for collecting water or conveying runoff.

NR 151.002(42)(b) (b) Is not part of a combined sewer system.

NR 151.002(42)(c) (c) Is not part of a publicly owned wastewater treatment works that provides secondary or more stringent treatment.

NR 151.002(42)(d) (d) Discharges directly or indirectly to waters of the state.

NR 151.002(42m) (42m) “Silviculture activity” means activities including tree nursery operations, tree harvesting operations, reforestation, tree thinning, prescribed burning, and pest and fire control. Clearing and grubbing of an area of a construction site is not a silviculture activity.

NR 151.002(43) (43) “Storm water management plan” means a comprehensive plan designed to reduce the discharge of pollutants from storm water, after the site has undergone final stabilization, following completion of the construction activity.

NR 151.002(44) (44) “Targeted performance standard” means a performance standard that will apply in a specific area, where additional practices beyond those contained in this chapter, are necessary to meet water quality standards.

NR 151.002(45) (45) “Technical standard” means a document that specifies design, predicted performance and operation and maintenance specifications for a material, device or method.

NR 151.002(46) (46) “Top of the channel” means an edge, or point on the landscape landward from the ordinary high water mark of a surface water of the state, where the slope of the land begins to be less than 12% continually for at least 50 feet. If the slope of the land is 12% or less continually for the initial 50 feet landward from the ordinary high water mark, the top of the channel is the ordinary high water mark.

NR 151.002(46m) (46m) “Total maximum daily load” or “TMDL” means the amount of pollutants specified as a function of one or more water quality parameters, that can be discharged per day into a water quality limited segment and still ensure attainment of the applicable water quality standard.

NR 151.002(47) (47) “TR-55” means the United States department of agriculture, natural resources conservation service (previously soil conservation service), Urban Hydrology for Small Watersheds, Second Edition, Technical Release 55, June 1986, which is incorporated by reference for this chapter.

NR 151.002 Note Note: Copies of this document may be inspected at the offices of the department’s bureau of watershed management, the natural resources conservation service, the secretary of state, and the legislative reference bureau, all in Madison, WI.

NR 151.002(48) (48) “Transportation facility” means a highway, a railroad, a public mass transit facility, a public-use airport, a public trail or any other public work for transportation purposes such as harbor improvements under s. 85.095 (1) (b), Stats. “Transportation facility” does not include building sites for the construction of public buildings and buildings that are places of employment that are regulated by the department pursuant to s. 281.33, Stats.

NR 151.002(49) (49) “Type II distribution” means a rainfall type curve as established in the “United States Department of Agriculture, Soil Conservation Service, Technical Paper 149, published 1973”, which is incorporated by reference for this chapter. The Type II curve is applicable to all of Wisconsin and represents the most intense storm pattern.

NR 151.002 Note Note: Copies of this document may be inspected at the offices of the department’s bureau of watershed management, the natural resources conservation service, the secretary of state, and the legislative reference bureau, all in Madison, WI.

NR 151.002(49m) (49m) “US EPA” means the United States environmental protection agency.

NR 151.002(50) (50) “Waters of the state” has the meaning given in s. 283.01 (20), Stats.

NR 151.002(51) (51) “WPDES permit” means a Wisconsin pollutant discharge elimination system permit issued under ch. 283, Stats.

NR 151.002 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (3), (6), (17), (18), (25), (42) (c), cr. (11m), (14g), (14r), (16m), (42m), (46m), (49m), r. (21) Register December 2010 No. 660, eff. 1-1-11; corrections in (48) made under s. 13.92 (4) (b) 6. and 7., Stats., Register December 2010 No. 660.

NR 151.003 NR 151.003 BMP Location.

NR 151.003(1) (1) Non-navigable waters. For purposes of determining compliance with the performance standards of subchs. III and IV, the department may give credit for BMPs that function to provide treatment for runoff from existing development and post-construction runoff from new development, redevelopment, and in-fill development and that are located within non-navigable waters.

NR 151.003(2) (2) Navigable waters.

NR 151.003(2)(a) (a) New development runoff. Except as allowed under par. (b), BMPs designed to treat post-construction runoff from new development may not be located in navigable waters and, for purposes of determining compliance with the performance standards of subchs. III and IV, the department may not give credit for such BMPs.

NR 151.003(2)(b) (b) New development runoff exemption. BMPs to treat post-construction runoff from new development may be located within navigable waters and may be creditable by the department under subchs. III and IV, if all the following are met:

NR 151.003(2)(b)1. 1. The BMP was constructed prior to October 1, 2002, and received all applicable permits.

NR 151.003(2)(b)2. 2. The BMP functions or will function to provide runoff treatment for the new development.

NR 151.003(2)(c) (c) Existing development and post-construction runoff from redevelopment and in-fill development. Except as provided in par. (d), BMPs that function to provide runoff treatment for existing development and post-construction runoff from redevelopment and in-fill development may not be located in navigable waters and, for purposes of determining compliance with the performance standards of subchs. III and IV, the department may not give credit for such BMPs.

NR 151.003(2)(d) (d) Existing development and post-construction runoff from redevelopment and in-fill development exemption. BMPs that function to provide treatment of runoff from existing development and post-construction runoff from redevelopment and in-fill development may be located within navigable waters and may be creditable by the department under subchs. III and IV, if any of the following are met:

NR 151.003(2)(d)1. 1. The BMP was constructed, contracts were signed or bids advertised and all applicable permits were received prior to January 1, 2011.

NR 151.003(2)(d)2. 2. The BMP is on an intermittent waterway and all applicable permits are received.

NR 151.003 Note Note: An intermittent waterway may be identified on a United States geological survey 7.5-minute series topographic map, a county soil survey map, the Surface Water Data Viewer Map, 24K hydro layer on the department’s website, or determined by the department through a site evaluation, whichever is more current. The Surface Water Data Viewer Map, 24K hydro layer is available at http://dnr.wi.gov/topic/surfacewater/swdv/.

NR 151.003(3) (3) Credit. The amount of credit that the department may give a BMP for purposes of determining compliance with the performance standards of subchs. III and IV is limited to the treatment capability of the BMP.

NR 151.003 Note Note: This section does not supersede any other applicable federal, state, or local regulation such as ch. NR 103 or ch. 30, Stats. Federal, state, and local permits or approvals may be required to excavate, dredge, fill, or construct BMPs in or near wetlands, non-navigable or navigable waters. Other permits and approvals may not be authorized where the BMP construction will result in adverse environmental impacts to the waterway or wetland.

NR 151.003 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: r. and recr. Register December 2010 No. 660, eff. 1-1-11.

NR 151.004 NR 151.004 State targeted performance standards. Implementation of the statewide performance standards and prohibitions in this chapter may not be sufficient to achieve water quality standards under chs. NR 102 to 105 or groundwater standards under ch. NR 140. In those cases, using modeling or monitoring, the department shall determine if a specific waterbody or area will not attain water quality standards or groundwater standards after substantial implementation of the performance standards and prohibitions in this chapter. If the department finds that water quality standards or groundwater standards will not be attained using statewide performance standards and prohibitions but the implementation of targeted performance standards would attain water quality standards or groundwater standards, the department shall promulgate the targeted performance standards by rule.

NR 151.004 Note Note: Pursuant to s. 281.16 (2) (a) and (3) (a), Stats., the performance standards shall be designed to meet state water quality standards.

NR 151.004 Note Note: Pursuant to s. 281.16 (3), Stats., the department of agriculture, trade and consumer protection shall develop or specify the best management practices, conservation practices or technical standards used to demonstrate compliance with a performance standard developed under s. NR 151.004.