Chapter NR 212

NR 212.60(4)(c)4. 4. The designated management agency shall recommend a reallocation including an explicit reserve capacity to the department within 30 days of the public meeting.

NR 212.60(4)(c)5. 5. The department shall notify the designated management agency of acceptance or rejection of the recommendation within 6 months.

NR 212.60 History History: Cr. Register, September, 1981, No. 309, eff. 10-1-81; emerg. r. and recr. (1) (c) and (2) (c), eff. 8-5-83; r. and recr. (1) (c) and (2) (c), Register, November, 1983, No. 335, eff. 12-1-83; am. (1) (a) and (f), (2) (b) 2., cr. (4), Register, May, 1986, No. 365, eff. 6-1-86; am. (1) (c) to (e), (2) (c) 1., 2.a. and 3., (d), (e) 2., (f) 2., (g), (h) (intro.) and 2., cr., tables 1-c and 8-m, r. and recr. tables 2-m, 3-m, 4-m and 5-m, Register, March, 1987, No. 375, eff. 4-1-87; am. table 1-c, Register, April, 1988, No. 388, eff. 5-1-88; CR 15-085: am. (1) (intro.), (b), (d), (e), (g) Register August 2016 No. 728, eff. 9-1-16.

NR 212.70 NR 212.70 Determination of Peshtigo river water quality related effluent limitations. Effluent limitations for point sources discharging BOD5 to the Peshtigo river shall be calculated according to the procedures contained in this section. These limitations shall apply from May 1 to October 31 annually.

NR 212.70(1) (1) Determine baseline loads for each point source subject to the wasteload allocation.

NR 212.70(1)(a) (a) The baseline load for each publicly-owned point source located between milepoints 9.6 and 0.0 shall be calculated as follows:

- See PDF for table

NR 212.70(1)(b) (b) The baseline load for each nonpublicly-owned point source located between milepoints 12.0 and 9.7 shall be calculated as follows:

- See PDF for table

NR 212.70(2) (2) Determine the allocation for each point source.

NR 212.70(2)(a) (a) The allocation for each publicly-owned point source located between milepoints 9.6 and 0.0 shall be a reduction in its discharge to levels appearing in Table 1-p.

NR 212.70(2)(b) (b) The allocation for each nonpublicly-owned point source located between milepoints 12.0 and 9.6 shall be a reduction in its discharge to levels appearing in Table 2-p.

NR 212.70(3) (3) The flow and temperature conditions used to determine compliance with permit effluent limits shall be the representative average measurements of the flow and temperature of the previous day.

NR 212.70 History History: Cr. Register, May, 1985, No. 353, eff. 6-1-85; CR 15-085: am. (1) (a), (b) Register August 2016 No. 728, eff. 9-1-16.

subch. III of ch. NR 212 Subchapter III — Development of Total Maximum Daily Loads and Effluent Limitations Developed Through Wasteload Allocations

NR 212.71 NR 212.71 Applicability. This subchapter establishes the procedures, methodologies, and requirements to be used for determining total maximum daily loads and water quality-based effluent limitations developed through wasteload allocations for pollutants except as provided in subch. II.

NR 212.71 History History: CR 15-085: cr. Register August 2016 No. 728, eff. 9-1-16.

NR 212.72 NR 212.72 Definitions. In addition to the definitions and abbreviations in ss. NR 205.03 and 205.04 the following definitions are applicable to the terms of this subchapter:

NR 212.72(1) (1) “EPA” means the United States environmental protection agency.

NR 212.72(2) (2) “Impaired water” has the meaning given in s. NR 151.002 (16m).

NR 212.72(3) (3) “Increased discharge” means any increase in the concentration or mass loading of a pollutant of concern that exceeds an effluent limitation that is in effect in a current permit.

NR 212.72(4) (4) “Load allocation” means the nonpoint source allocation as defined in s. NR 212.03 (14).

NR 212.72(5) (5) “Loading capacity” means the greatest amount of loading that a water can receive without violating water quality standards.

NR 212.72(6) (6) “Margin of safety” means a required component of the TMDL that accounts for the uncertainty in the response of the waterbody to loading reductions.

NR 212.72(7) (7) “Natural background load” means loads emanating from natural sources, including but not limited to forested and undeveloped lands and from natural processes such as weathering and dissolution, which would exist in the absence of measurable impacts from human activity or influence.

NR 212.72(8) (8) “New discharge” means a point source that discharges the pollutant of concern that commenced operation after the TMDL was approved by EPA and was not given a wasteload allocation in the TMDL.

NR 212.72(9) (9) “Pollutant of concern” means any pollutant discharged that has an applicable TBEL, a wasteload allocation from a TMDL or watershed analysis, or is identified as needing a WQBEL to meet water quality standards.

NR 212.72(10) (10) “TBEL” means technology-based effluent limitation.

NR 212.72(11) (11) “TMDL” means total maximum daily load and is the sum of the individual wasteload allocations for point sources, load allocations for nonpoint sources, natural background, and a margin of safety. TMDLs can be expressed in terms of mass per time, toxicity, or other appropriate measures that relate to a state water quality standard.

NR 212.72(12) (12) “Wasteload allocation” refers to the point source allocation as defined in s. NR 212.03 (22).

NR 212.72(13) (13) “WQBEL” means water quality-based effluent limitation.

NR 212.72 History History: CR 15-085: cr. Register August 2016 No. 728, eff. 9-1-16.

NR 212.73 NR 212.73 TMDL development requirements for impaired waters.

NR 212.73(1) (1) Purpose. This section establishes the procedure, methodologies, and requirements to be used for developing TMDLs.

NR 212.73(2) (2) Prioritization. The department shall create and maintain an impaired waters list of waters that fail to meet water quality standards and, therefore, require the development of TMDLs or alternative remediation plans. The impaired waters list shall include a priority ranking for the development of a TMDL for all listed waters. The priority ranking shall consider the severity of the pollution, the uses to be made of such waters, and whether implementing existing TBELs and WQBELs in permits are sufficient to achieve water quality standards. By April 1 of each even-numbered year, the Department shall submit to the EPA a prioritized ranking of waters on the impaired waters list targeted for TMDL development for a two-year period.  Impaired waters addressed by alternative remediation plans may be assigned a low priority for TMDL development on the impaired waters list.

NR 212.73 Note Note: The impaired waters listing and priority setting process is specified in the Wisconsin Consolidated Assessment and Listing Methodology (WisCALM).

NR 212.73 Note Note: Examples of remediation plans include, but are not limited to, lake protection and restoration plans, remedial action plans, environmental accountability projects, area-wide water quality management plans, adaptive management plans, and nine key element watershed plans. 

NR 212.73(3) (3) TMDL Development.

NR 212.73(3)(a) (a) The department shall establish TMDLs for impaired waters in accordance with the prioritization in sub. (1). TMDLs shall be established at levels necessary to attain and maintain applicable numeric and narrative water quality standards with seasonal variations and a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. TMDLs shall take into account critical conditions for stream flow, loading, and water quality parameters.

NR 212.73(3)(b) (b) TMDLs shall be established to ensure attainment of all designated uses and applicable numeric and narrative water quality standards for the pollutant of concern including applicable numeric and narrative criteria under chs. NR 102 and 105.

NR 212.73(3)(c) (c) TMDLs may be established using a pollutant-by-pollutant or biomonitoring approach. In many cases both techniques may be needed. Site specific information should be used whenever possible.

NR 212.73(3)(d) (d) TMDLs shall include wasteload allocations for point sources and load allocations for nonpoint sources such that the sum of the allocations is not greater than the loading capacity of the water for the pollutants addressed by the TMDL, minus the sum of natural background loads, the reserve capacity and, if specified, an explicit margin of safety. Allocations shall meet the following requirements:

NR 212.73(3)(d)1. 1. Allocations shall be distributed to sources using a baseline loading condition that is defined in the TMDL.

NR 212.73(3)(d)2. 2. If allocations in the TMDL are expressed as a concentration, the TMDL shall also indicate the flows, including effluent flows, assumed in the analyses.

NR 212.73(3)(d)3. 3. If multiple EPA-approved TMDLs are prepared for impaired waters, and the TMDLs include allocations for the same pollutant for one or more of the same sources, then the applicable allocations that are protective of both immediate and downstream segments shall be used for TMDL implementation, including permitting.

NR 212.73(3)(d)4. 4. Pollutant degradation and transport may be considered when developing allocations.

NR 212.73(3)(d)5. 5. Natural background loads may be accounted for in a TMDL through an allocation to a single category or through individual allocations to applicable sources of natural background loads.

NR 212.73(3)(d)6. 6. Nonpoint sources may be accounted for in a TMDL through an allocation to a single category or through individual load allocations to various nonpoint sources.

NR 212.73(3)(d)7. 7. Point source dischargers covered through individual permits shall be assigned individual waste load allocations. Point source dischargers covered through general permits may be accounted for through an allocation to a single category or through individual wasteload allocations.

NR 212.73(3)(e) (e) TMDLs shall include a margin of safety sufficient to account for technical uncertainties in establishing the TMDL and shall describe the manner in which the margin of safety is determined and incorporated into the TMDL. The margin of safety may be provided explicitly by leaving a portion of the loading capacity unallocated, implicitly by using conservative modeling assumptions to establish wasteload allocations and load allocations, or a combination thereof. If a portion of the loading capacity is left unallocated to provide a margin of safety, the amount left unallocated shall be documented. If conservative modeling assumptions are relied on to provide a margin of safety, the specific assumptions providing the margin of safety shall be described.

NR 212.73(3)(f) (f) A portion of the TMDL may be allocated to a reserve capacity to account for new or increased discharges, or other sources not allocated in the TMDL. When such reserve allocations are not included in a TMDL, any increased loadings of the pollutant for which the TMDL was developed that are due to a new or expanded discharge may not be allowed unless the TMDL is revised to include an allocation for the new or expanded discharge or the new or expanded discharge is offset by a reduction of the pollutant in the watershed covered by the TMDL.

NR 212.73(4) (4) Monitoring data. Monitoring data shall be collected to support the development of the TMDL and track implementation of a TMDL. Monitoring data shall be used for all of the following:

NR 212.73(4)(a) (a) To demonstrate progress towards achieving water quality standards such as quantifying pollutant reductions made through implementation of the TMDL and evaluating the effectiveness of controls being used to implement the TMDL.

NR 212.73(4)(b) (b) To validate the assumptions and scientific analysis used to establish the TMDL or revise the TMDL, if necessary.

NR 212.73(5) (5) Reasonable assurance. A TMDL, implementation plan for a TMDL, or remediation plan shall provide reasonable assurances that water quality standards will be attained within a reasonable timeframe. Determining the reasonable period of time in which water quality standards will be met is a case-specific determination considering a number of factors including, but not limited to: receiving water characteristics including persistence, behavior, and ubiquity of pollutants of concern; the types of remedial activities necessary; and available regulatory and non-regulatory controls.

NR 212.73 History History: CR 15-085: cr. Register August 2016 No. 728, eff. 9-1-16.

NR 212.74 NR 212.74 Developing TMDLs for nearshore and open waters of the Great Lakes. This section describes requirements for deriving TMDLs for waters of the Great Lakes system as defined in s. NR 102.22 (5) and inland lakes within the Great Lakes system with no appreciable flow relative to their volumes. This section applies to TMDLs for all pollutants excluding the following: alkalinity, ammonia, bacteria, biochemical oxygen demand, chlorine, color, dissolved oxygen, dissolved solids, pH, phosphorus, salinity, temperature, total and suspended solids, turbidity, and whole effluent toxicity. In addition to the requirements specified in s. NR 212.73, TMDLs in this section shall also meet all of the following:

NR 212.74(1) (1) TMDLs shall reflect, when appropriate and when sufficient data are available, contributions to the water column from sediments inside and outside of any applicable mixing zones. TMDLs shall be sufficiently stringent so as to prevent accumulation of the pollutant of concern in sediments to levels injurious to designated or existing uses, human health, wildlife, and aquatic life.

NR 212.74(2) (2) TMDLs shall reflect, when appropriate and when sufficient data are available, discharges resulting from wet weather events.

NR 212.74(3) (3) TMDLs shall reflect, when appropriate and when sufficient data are available, background concentrations of pollutants stemming from atmospheric deposition, sediment release or resuspension, or as a result of chemical reactions.

NR 212.74 History History: CR 15-085: cr. Register August 2016 No. 728, eff. 9-1-16.

NR 212.75 NR 212.75 Developing TMDLs for Great Lakes systems tributaries and connecting channels. This section describes conditions for deriving TMDLs for tributaries and connecting channels of the Great Lakes system as defined in s. NR 102.12 (1) that exhibit appreciable flows relative to their volumes. This section applies to TMDLs for all pollutants excluding the following: alkalinity, ammonia, bacteria, biochemical oxygen demand, chlorine, color, dissolved oxygen, dissolved solids, pH, phosphorus, salinity, temperature, total and suspended solids, turbidity, and whole effluent toxicity. In addition to the requirements specified in s. NR 212.73, TMDLs in this section shall also meet all of the following:

NR 212.75(1) (1) TMDLs shall reflect, when appropriate and when sufficient data are available, contributions to the water column from sediments inside and outside of any applicable mixing zones. TMDLs shall be sufficiently stringent so as to prevent accumulation of the pollutant of concern in sediments to levels injurious to designated or existing uses, human health, wildlife, and aquatic life.

NR 212.75(2) (2) TMDLs shall reflect, when appropriate and when sufficient data are available, discharges resulting from wet weather events.

NR 212.75(3) (3) TMDLs shall reflect, when appropriate and when sufficient data are available, background concentrations of pollutants stemming from atmospheric deposition, sediment release or resuspension, or as a result of chemical reactions.

NR 212.75(4) (4) Design flows shall be used unless data exist to demonstrate that an alternative stream design flow is appropriate for stream-specific and pollutant-specific conditions. For purposes of calculating a TMDL, the stream design flows shall be all of the following:

NR 212.75(4)(a) (a) The 7-day, 10-year stream design flow (7Q10), or the 4-day, 3-year biologically-based stream design flow for chronic aquatic life criteria or values.

NR 212.75(4)(b) (b) The 1-day, 10-year stream design flow (1Q10), for acute aquatic life criteria or values.

NR 212.75(4)(c) (c) The harmonic mean flow for human health criteria or values.

NR 212.75(4)(d) (d) The 90-day, 10-year flow (90Q10) for wildlife criteria.

NR 212.75(4)(e) (e) TMDLs, calculated using dynamic modeling are not required to incorporate the stream design flows specified in pars. (a) to (d) of this procedure.

NR 212.75(5) (5) The loading capacity is initially calculated at the farthest downstream location for the impaired reach by multiplying the applicable criterion or target value by the flow condition described in sub. (4). The loading capacity is then compared to the loadings at sites within the basin to assure that applicable numeric criteria or values for a given pollutant are not exceeded at all applicable sites. The lowest load is then selected as the loading capacity to be consistent with the attainment of each applicable numeric criterion or value for a given pollutant.

NR 212.75 History History: CR 15-085: cr. Register August 2016 No. 728, eff. 9-1-16.

NR 212.76 NR 212.76 Establishing WQBELs for publicly and privately owned wastewater facilities or treatment works.

NR 212.76(1) (1) WQBEL calculation procedures. Calculation of WQBELs derived from TMDL wasteload allocations shall be derived consistent with the wasteload allocation and assumptions of an EPA-approved TMDL. The department shall use scientifically defensible methods to calculate these WQBELs. All of the following conditions shall apply when calculating WQBELs derived from TMDL wasteload allocations:

NR 212.76(1)(a) (a) WQBELs shall be expressed as mass limitations unless the pollutant cannot appropriately be expressed by mass or a mass limitation is infeasible because the mass of the pollutant cannot be related to a measure of operation.

NR 212.76(1)(b) (b) When establishing WQBELs in permits the department shall ensure that substances are not present in amounts that are acutely toxic to animals, plants, or aquatic life in all surface waters including those portions of the mixing zone normally habitable by aquatic life and effluent channels as required by s. NR 102.04 (1).

NR 212.76(1)(c) (c) When establishing WQBELs in permits the department shall ensure that substances are not exceeding applicable chronic toxicity criteria, wildlife criteria, taste and odor criteria, human threshold criteria, human cancer criteria, and secondary values, as specified in chs. NR 102 to 105, after dilution with an appropriate allowable quantity of receiving water flow unless the conditions specified in s. NR 102.05 (3) or the TMDL wasteload allocation require less dilution or no dilution be allowed. WQBELs may be more restrictive than the applicable water quality criteria in order to be consistent with the wasteload allocation and assumptions of an EPA-approved TMDL.

NR 212.76(2) (2) WQBEL calculation procedures in Great Lakes basin. In addition to the requirements in sub. (1), WQBELs derived from TMDLs under ss. NR 212.74 and 212.75 shall also meet all of the following:

NR 212.76(2)(a) (a) WQBELs shall be sufficiently stringent to ensure that accumulation of the pollutant of concern cannot occur in sediments at levels injurious to designated or existing uses, human health, wildlife, or aquatic life.

NR 212.76(2)(b) (b) When establishing WQBELs in permits the department shall assume that the pollutant of concern does not degrade over time unless any the following conditions are met:

NR 212.76(2)(b)1. 1. Scientifically valid field studies or other relevant information demonstrate that degradation of the pollutant is expected to occur under the full range of environmental conditions expected.

NR 212.76(2)(b)2. 2. Scientifically valid field studies or other relevant information address other factors that affect the level of pollutants in the water column including suspension of sediments, chemical speciation, and biological and chemical transformation.

NR 212.76(3) (3) Mixing zones for bioaccumulative chemicals of concern (BCCs). WQBELs derived from TMDL wasteload allocations for BCCs shall be consistent with and no less stringent than the mixing zone provisions under s. NR 106.06 (2).

NR 212.76(4) (4) Expression of limits. WQBELs derived from TMDL wasteload allocations shall be expressed consistent with the provisions specified in s. NR 205.065 unless impracticable or an alternative expression of limitations is determined appropriate by the department and is consistent with the assumptions of the TMDL.

NR 212.76(5) (5) Compliance schedules. When a permit is issued, reissued, or modified with new WQBELs based on a TMDL established using the procedures in this subchapter, the department may include a compliance schedule to achieve compliance with the TMDL based limitation if the permittee’s treatment system is unable to immediately comply with the limitation. The compliance schedule shall meet all of the following conditions:

NR 212.76(5)(a) (a) The schedule of compliance will lead to compliance with the water quality based effluent limitation as soon as possible.

NR 212.76(5)(b) (b) The compliance schedule may not extend beyond the expiration date of the permit unless extended compliance schedules are authorized in ch. NR 217, other Wisconsin administrative code chapters, or a TMDL schedule in an approved areawide water quality management plan under ch. NR 121. Compliance schedules for toxic and organoleptic substances shall be consistent with the requirements of s. NR 106.117.

NR 212.76(5)(c) (c) Dates between interim compliance steps in the compliance schedule may not exceed one year.