Note: The option for rivers with impounded flowing waters, reservoirs, or natural drainage lakes is provided because modeling chlorophyll a – phosphorus correlations is more cost-effective for these waters than modeling such correlations in rivers, and attaining the chlorophyll a targets for lakes, reservoirs, and impounded flowing waters should ensure that chlorophyll a targets are also met within the river.
(5) Proposed SSC extent. Identification of the extent of the study area that is eligible for the SSC. For a less stringent SSC, this may include any segments within the study area that do not attain their applicable phosphorus criteria but do attain all phosphorus response indicators and biocriteria. For a more stringent SSC, this may include any segments that are demonstrated to need a more stringent phosphorus criterion to protect designated uses.
Note: Typically, monitoring and analysis under subs. (3) to (4) will need to be completed before the extent of the study area eligible for the SSC can be identified.
(6) Downstream protection. For less stringent SSC, a demonstration that potentially affected downstream waters’ uses are protected by the proposed SSC, using one of the following methods:
(a) Waters in the study area under sub. (1) that are downstream of the proposed SSC extent as determined under sub. (5) shall be assessed as follows:
1. If all segments attain their applicable phosphorus criteria, phosphorus response indicators, and biocriteria, the SSC is protective of downstream waters.
2. If the terminal waterbody is a river listed in s. NR 102.06 (3) that is not attaining its phosphorus response indicators or biocriteria, but all segments upstream of the terminal waterbody attain their applicable phosphorus criteria, phosphorus response indicators, and biocriteria, an SSC may be established in the SSC extent. The SSC shall not exceed the phosphorus criterion of the terminal river or the ambient total phosphorus concentration of the SSC extent. (b) If a demonstration for downstream protection under par. (a) is not appropriate or feasible, an alternative demonstration of downstream protection may be submitted by the requestor to the department.
(7) Proposed SSC and supporting materials. The proposed SSC and materials supporting the proposal, including all of the following:
(a) Determination of the SSC that would be appropriately protective of designated uses in the waterbody and downstream, based on the analyses in this section.
(b) Demonstration that there is a statistically significant difference between the proposed SSC and the statewide phosphorus criterion, based on estimation of the uncertainty in the relationships developed under sub. (4) (b).
Note: For example, an SSC is generally not appropriate if the statewide phosphorus criterion is contained within the 2-sided 80% confidence interval around the SSC.
(c) A draft technical support document that contains the information required in this chapter to support the SSC and meets the requirements specified in s. 281.15 (2) (b) to (e), Stats. All raw data and calculations shall also be submitted to the department. Note: Section 281.15 (2) (b) to (e), Stats., requires information on socioeconomic costs and considerations, a demonstration that the criterion is no more stringent than reasonably necessary to assure attainment of a waterbody’s designated uses, application of reasonable statistical techniques, and a technical support document detailing methods used to develop the criterion. Note: The department recommends that requestors meet with the department early in the process to determine additional data needs and protocols before developing a monitoring or modeling plan or submitting an SSC request. The department may provide technical assistance as resources allow. Any preliminary advice provided by the department is not binding, but is meant to inform the requestor’s decision on whether to develop an SSC and the information needed to do so.
NR 119.07 Decision regarding SSC request. (1) The department shall review the SSC request and make a determination on whether the SSC may be approvable.
(2) If the department denies the request for an SSC at any point under the procedures in this section, it shall notify the SSC requestor in writing and provide an explanation of the reason for the denial.
Note: If the department chooses to deny the SSC request, any person may petition for rulemaking under the procedures specified in s. NR 2.05 and s. NR 227.12, Stats., or may request that U.S. EPA promulgate an SSC under 40 CFR 131.22 (b). (3) If the department determines that a requested SSC may be approvable, it shall do all of the following:
(a) Document its justification for tentative SSC approval through a technical support document and demonstrate that requirements under s. 281.15 (1) and (2) (b) to (e), Stats., are met. (b) Provide at least a 45-day public comment period and a public hearing with a 45-day public notice for the proposed SSC and technical support document. The department will post notification on its website and send electronic notification to: the department’s water quality standards distribution list, the WPDES permit public notification list specified in s. NR 203.13 (3) (i), dischargers with an individual WPDES permit located upstream from the proposed SSC, and U.S. EPA. Note: The public may subscribe to the water quality standards electronic notification system on the department’s home page at http://dnr.wi.gov/. Requests to be placed on the WPDES permit public notification list may be directed to the Department of Natural Resources, WPDES Permits, P.O. Box 7921, Madison, Wisconsin 53707-7921. Notifications to the mailing list will be sent electronically unless the requestor specifies a preference for a mailed copy. (4) After the public comment period, the department shall take one of the following actions:
(a) If there are no requests for rulemaking for the SSC nor objections to development of the SSC, the department shall issue a final written determination. If the department’s final determination is an approval of the SSC, the department shall publish its final determination on its website. No earlier than 30 days after publication on the website, the department shall submit the SSC to U.S. EPA for approval unless the SSC final determination was challenged under ch. 227, Stats., during the 30-day post-publication period. If U.S. EPA approves the SSC, the department shall publish the SSCon the department’s website or publicly-accessible data system. (b) If the department receives a request for rulemaking on a proposed SSC or an objection to development of the SSC either at the hearing or in writing by the end of the comment period specified in sub. (3) (b), the department may not proceed with the process under par. (a). The department may either initiate rulemaking for an SSC pursuant to the rulemaking procedures under subch. II of ch. 227, Stats., or choose not to take further action on the SSC. Any person providing an objection to development of an SSC or a request for rulemaking shall provide a written explanation regarding the basis for their request or objection. Note: If the department chooses to deny the SSC request or not to proceed with rulemaking, any person may petition for rulemaking under the procedures specified in s. NR 2.05 and s. 227.12, Stats., or may request that U.S. EPA promulgate an SSC under 40 CFR 131.22 (b). Note: An SSC can only be used as the basis for a TMDL after it has been approved by U.S. EPA and taken effect.
NR 119.08 Revision of SSC. Any person may request a revision of an approved SSC or the department may revise an approved SSC on its own initiative through the procedures in this chapter or through the procedures for rulemaking under subch. II of ch. 227, Stats.
Section 4. Effective Date. This rule takes effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.), Stats. Section 5. Board adoption. This rule was approved and adopted by the State of Wisconsin Natural Resources Board on [DATE].
Dated at Madison, Wisconsin _____________________________.
STATE OF WISCONSIN
DEPARTMENT OF NATURAL RESOURCES
BY ______________________________________
Preston D. Cole, Secretary
(SEAL)
