[06-13-2019]
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 102.04 (4) (b) and 102.06 (7) (Note 2); to renumber NR 102.04 (6) and 102.06 (2) (a), (f), and (fm); to renumber and amend NR 102.06 (2) (g), (i), and (4) (c); to amend NR 102.03 (intro.), 102.04 (4) (d) and (5) (b), 102.06 (1) and (2) (intro.), and 217.13 (2) (d) and (Note); to repeal and recreate NR 102.04 (4) (a) and 102.06 (3) (title); and to create NR 102.03 (1c), (1e), (1g), (1i), (1k), (1m), (1q), (1v), (6d), and (9), 102.04 (4) (am), (f), (g), (6) (a) (title), (b), and Table A, 102.07, and 102 Subchapters III and IV, relating to processes for waterbody assessments and impaired waters listing, biological criteria for water quality standards, and biological confirmation of phosphorus impairments. |
WY-23-13
Analysis Prepared by the Department of Natural Resources
1-3. Statutory Authority, Statutes Interpreted, and Explanation of Agency Authority:
Sections 281.11 and 281.12, Wis. Stats., grant necessary powers and establish a comprehensive program under the WDNR to enhance quality management and protection of all waters of the state. It grants the WDNR general supervision and control to carry out the planning, management and regulatory programs necessary for prevention/reduction of water pollution and for improvement of water quality.
Section 281.15, Wis. Stats. mandates that the department promulgate water quality standards, including water quality criteria and designated uses. It recognizes that different use categories and criteria are appropriate for different types of waterbodies, and that the department shall establish criteria which are not more stringent than reasonably necessary to assure attainment of the designated use for the water bodies in question.
Section 281.65(4)(c) and (cd), Wis. Stats., directs the department to prepare a list of waters impaired by nonpoint source pollution. 4. Related Statutes or Rules:
The proposed rules are related to two other sets of rules currently in progress:
Another section of ch. NR 102, s. NR 102.04, specifies designated uses for surface waters. Aquatic life and recreation designated uses are relevant to this rule package, as this rule package creates or updates criteria that are developed specifically to support aquatic life and recreation designated uses. The designated uses in s. NR 102.04 are currently undergoing a set of revisions through rule package WY-25-13. However, the rule revisions contained in that package do not directly impact the revisions proposed in this rule package.
Rule package WT-17-12 creates processes for establishing site-specific criteria for phosphorus. A waterbody’s eligibility for a site-specific criterion under that rule is largely dependent on whether the waterbody is attaining its phosphorus response indicators and biocriteria as specified in this rule package. Material created as part of this rule package is cross-referenced in the draft site-specific criteria rule. Therefore this rule package, WY-23-13, must be promulgated before or concurrent with rule package WT-17-12.
5. Plain Language Analysis:
This rule package addresses several areas related to the state’s assessments of its streams, rivers, lakes and other waterbodies. It focuses largely on assessments related to the biological quality of a waterbody.
Waterbody Assessments and Reporting. Every two years, under federal Clean Water Act requirements, the department assesses the state’s waterbodies to determine whether they are attaining water quality standards. A new subchapter is proposed that codifies Wisconsin’s current procedures for conducting surface water impairment assessments, including public participation opportunities and EPA approval.
Biocriteria. The most direct and commonly-applied method of measuring the quality of a waterbody is through assessing the biological communities within the waterbody—its fish, insects, plants, and algae. This proposed subchapter establishing narrative biocriteria will provide a general outline of the types of procedures that the department undertakes to assess the quality of surface waters based on the health of their biological communities. These “narrative biocriteria” generally describe the types of biological assessments conducted to determine whether a waterbody’s aquatic community is healthy and attaining its designated uses or is not attaining its designated uses and should be placed on the impaired waters list (section 303 (d) list).
Dissolved oxygen criteria for Aquatic Life. Revisions to the dissolved oxygen section are needed to clarify which criteria apply to different waterbody types:
This rule specifies that the dissolved oxygen criterion of 7.0 mg/L applies not only to the time of spawning but also during the early life stages that require higher oxygen levels. This more protective time frame applies to only trout class I and II streams, which by definition support trout reproduction. This rule removes the requirement for higher dissolved oxygen during spawning from class III trout streams, which by definition do not support reproduction.
This rule relocates certain dissolved oxygen criteria from ch. NR 104 to s. NR 102.04(4), so that all dissolved oxygen criteria are located in the same part of the code. The relocated criteria are the existing dissolved oxygen criterion of 3 mg/L for limited forage fish waters and 1 mg/L for limited aquatic life waters, diffuse surface waters, and wastewater effluent channels.
The addition of oxythermal criteria for two-story fisheries is necessary because the existing dissolved oxygen criteria are not appropriate for this relatively rare and sensitive type of coldwater fishery, comprising only .01% of Wisconsin’s lakes. Algae criteria for Recreation and Aquatic Life. The rule proposes algae (chlorophyll a) criteria for lakes, reservoirs and impounded flowing waters. Algae levels are a top water quality concern for the public, and are a critical component of waterbody assessments to determine whether recreational goals are met. The chlorophyll a criteria created here are the same as benchmarks already used by the department to assess water quality for recreation and aquatic life uses.
Phosphorus assessment procedures using biological metrics. Statewide phosphorus criteria were promulgated in 2010. However, the criteria did not include evaluation procedures for determining attainment of the phosphorus criteria in a waterbody. This rule specifies how attainment of the phosphorus criteria is determined. It also incorporates flexibility for determining impairment due to phosphorus levels by creating a “combined criteria” approach. Under this approach, the waterbody’s phosphorus concentration is reviewed in conjunction with “phosphorus response indicators”—algae and plant metrics—that specifically indicate whether the waterbody is exhibiting a biological response to phosphorus. If a waterbody exceeds the statewide phosphorus criterion (within a certain range) but does not exhibit a biological or recreational use impairment, it would not be considered impaired for purposes of section 303 (d) listing.
NR 217 calculation of upstream background phosphorus concentrations. This rule includes a revision to a portion of ch. NR 217 to align the phosphorus calculation methods used to determine background phosphorus concentrations for effluent limit calculations with those delineated in proposed s. NR 102.07 (1) (a) 2. Previously, slightly different methods were used to calculate ambient phosphorus concentrations for purposes of criteria assessment and to calculate upstream background phosphorus concentrations for WPDES permit limit derivation under s. NR 217.13 (2) (d). Although these two methods yield very similar resulting phosphorus concentrations, the differences between the two methods have caused confusion and are unnecessary. The proposed procedure detailed in s. NR 102.07 (1) (a) 2, which is the method used for criteria assessment, parallels how the criteria were initially developed and will be most appropriate for both applications. Definitions. Several new definitions are included in this rule, and some definitions are relocated from the section of the rule dealing only with the phosphorus criteria to the section of the rule applying to the whole chapter. There are also some clarifications made to a few definitions, such as “stratified lake or reservoir” and “stratified two-story fishery lake.” These are not expected to change the waterbodies included in these categories, only to clarify the existing interpretation of these terms.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Federal regulations require that states assess surface waters and create an impaired waters list every two years. In addition, federal regulations require states to develop water quality criteria. However, federal regulations do not specify detailed procedures for assessing waters or listing them as impaired. This rule package establishes a general structure that the department follows in assessing surface waters and reporting under ss. 303 (d) and 305(b) of the Clean Water Act, including listing waters on the impaired waters list. It also creates new water quality criteria to address the state’s water quality needs, including criteria for algae based on chlorophyll a, oxythermal criteria for two-story fishery lakes, narrative biocriteria, and updates to the existing dissolved oxygen criteria.
Sec. 303 (d)(1)(A) of the Federal Water Pollution Control Act (Clean Water Act) requires states to develop an impaired waters list that identifies waters that are not meeting any water quality standard.
Sec. 305(b)(1) of the Federal Water Pollution Control Act (Clean Water Act) requires states to prepare a biennial report documenting which waterbodies are attaining their designated uses.
40 CFR s. 130. 4 Water Quality Monitoring. This section requires water quality monitoring and assessments of state waters.
40 CFR s. 130.7 Total maximum daily loads (TMDLs) and individual water quality-based effluent limitations. This section provides additional information related to requirements for developing the impaired waters list.
40 CFR s. 130.8 Water Quality Reports. States must submit water quality reports to EPA that include a water quality assessment of state waters.
40 CFR s. 130.3. Water quality standards. This section defines water quality standards as setting water quality goals for a waterbody that will protect its designated uses (such as protection of fish, wildlife, recreation, and public health and welfare). Criteria will be set to protect those uses.
40 CFR s. 131.11 Criteria. States must adopt those water quality criteria that protect the designated use. Such criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. For waters with multiple use designations, the criteria shall support the most sensitive use. 7. Comparison with Similar Rules in Adjacent States:
All states follow assessment procedures similar to the department’s waterbody assessment procedures outlined in subch. IV of ch. NR 102.
Biological assessments are used by states to evaluate the biological health of surface waters. Some states assess waterbodies through guidance and other states have established narrative or numeric biocriteria in rules. Narrative biocriteria provide a general statement of goals and the types of metrics to be assessed, while numeric biocriteria specify numeric thresholds for biological quality of fish, insects, plants, or other aquatic life. Wisconsin is proposing narrative biocriteria. Indiana currently has narrative biocriteria. Until recently, Minnesota had narrative biocriteria similar to Wisconsin’s proposal. Minnesota recently revised their biocriteria to a numeric format. Ohio also has promulgated numeric biocriteria. Michigan, Illinois, and Iowa have not formally incorporated narrative or numeric biocriteria into their water quality standards. However, all Region 5 states, Iowa, and most other states in the nation do use biological metrics such as fish and insect scores for waterbody assessments and section 303 (d) listing, regardless of whether narrative or numeric biocriteria are codified.
Most Region 5 states use some variation on phosphorus response indicators, including algal indicators or criteria. Minnesota has a promulgated combined criteria approach to assessing nutrient levels and their biological and chemical responses. Minnesota’s biological metrics center on chlorophyll a. Ohio’s approach is to use a multi-metric scoring system that aggregates results from separate evaluations of primary productivity (algae/plants), biological health and in-stream nutrient concentrations. Indiana has a process for assessing phosphorus impairments using chlorophyll a response indicators. Illinois has numeric phosphorus criteria for lakes and is currently considering promulgating proposed numeric phosphorus criteria for streams/rivers. Illinois also has narrative nutrient criteria and considers a water to be not meeting the criteria if excess algae is present in the waterbody. Michigan does not currently have numeric phosphorus criteria, but does have narrative phosphorus criteria. Iowa does not currently have phosphorus criteria but does assess waterbodies for phosphorus and chlorophyll a, and uses chlorophyll a to list waters as impaired for eutrophication based on narrative criteria.
Wisconsin and Minnesota are the only Region 5 states that have two-story coldwater fishery lakes. Wisconsin’s oxythermal criteria were developed using a modification of methods developed in Minnesota. Although Minnesota uses its methods for assessments, it has not yet codified oxythermal criteria for its two-story fishery lakes. 8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
All of the biological metrics included in this rule package are based on detailed analysis of Wisconsin data, as well as review of relevant literature, EPA recommendations, and approaches used in other states. These analyses are described in a technical support document for the rule. The biocriteria subchapter in this rule package outlines the types of biological assessments done by the department to assess a waterbody’s fish, aquatic insect, and aquatic plant community. Recommended methods for assessing these metrics are included in Wisconsin’s Consolidated Assessment and Listing Methodology (WisCALM) guidance. These metrics are based on published scientific papers and are standard methods used and refined by the department over time. The oxythermal habitat metric was newly developed as part of this rule package based on a modification of a method used in Minnesota, and was also recently published as a scientific paper. The algal metrics for recreation were developed using an analysis of Wisconsin lake user perception surveys. The suspended chlorophyll a criterion for aquatic life are based on trophic status to prevent a waterbody from becoming algal dominated and impairing feeding and reproduction of fish and insects. The stream benthic algae phosphorus response indicator is based on relationships between the occurrence of diatom taxa and phosphorus concentrations. After initial recommendations for this rule were developed, an external stakeholder committee met periodically over the course of two years to review the recommendations and provide feedback, and additional information was provided throughout this process. EPA water quality standards staff were part of this committee and also provided technical input.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
This rule primarily pertains to biological assessments of surface waters. The department expects this rule package to have minimal economic impacts, for two main reasons:
1.
This rule largely documents protocols and procedures already used by the department for standard assessments. These types of assessments are common among Region 5 and other states. Because it largely reflects the status-quo, additional costs are not anticipated.2.
Biological metrics do not typically have direct impacts on the regulated community. Rather, they help the department determine what types of stressors may be affecting biological communities, and whether restoration actions may be needed to mitigate those stressors. In the rare case where the biological community is impaired due to a pollutant that is present at low enough levels that the pollutant is not exceeding its criterion, the department would need to go through the process of developing a more stringent site-specific criterion for that pollutant before permit limits might be affected. In other states applying biological criteria, it is very rare that the biological criteria have any effect upon a permit limit.Waterbody Assessments and Reporting. This proposed subchapter provides a general outline of the types of waterbody assessments currently being used by the department as required under the Clean Water Act. As such, there is no economic impact expected from the creation of this subchapter.
Biocriteria. This proposed subchapter establishes narrative biocriteria that describe the biological quality goals for a surface water’s aquatic life community, and provides a general outline of the procedures currently being used by the department to assess biological quality. As such, there is no economic impact expected from the creation of this subchapter. The department’s guidance for assessing waterbodies, WisCALM, includes recommended methods for biological assessments. WisCALM would continue to be updated every two years with each assessment cycle, and any such updates to the guidance are subject to a separate public comment period. As WisCALM is updated over time, existing biological metrics such as those for fish and aquatic insects may be revised to reflect the most recent science. If any new biological metrics are included in WisCALM in the future – for instance, a lake aquatic plant metric that is under consideration – waterbodies would then be assessed for attainment of the new biological metric as well. A waterbody that is determined to be biologically impaired and for which a pollutant is identified as the cause of impairment may be subject to future pollutant reduction measures that could entail a cost. However, permitted dischargers would only be fiscally impacted if an SSC more stringent than the pollutant’s statewide criterion was developed and approved by USEPA. Development of such SSC are already allowable under existing authority.
Dissolved oxygen criteria for Aquatic Life. Revisions to the dissolved oxygen section are minimal and help clarify which criteria apply to different waterbody types. These have no expected economic impact. The addition of oxythermal criteria for two-story fisheries is useful in assessing the health of the fishery but is not expected to have an economic impact, as there are no dischargers with individual Water Pollution Discharge Elimination System (WPDES) permits on or upstream of two-story fishery lakes. If a waterbody is not attaining this criterion, the department may recommend a study to determine the reason for non-attainment and what restoration actions may be appropriate.
Algae criteria for Recreation and Aquatic Life. These criteria are the same as algal benchmarks already used by the department to assess water quality and list a waterbody as impaired where recreational uses are adversely affected. The department’s analysis shows that, once attained, the existing statewide phosphorus criteria will be protective of the proposed chlorophyll a criteria in most waterbodies. The department does not intend to require chlorophyll a monitoring of discharges, and there are not permit implementation procedures associated with the chlorophyll a standard included in this rule package. The only way a more stringent phosphorus limit would be derived based on an exceedance of a chlorophyll a criterion is if a more-stringent phosphorus SSC was developed by the department and approved by U.S. EPA. Any such phosphorus SSC proposal is likely to go through its own rulemaking process, and any costs associated with it would be evaluated at that time. The establishment of chlorophyll a criteria does not provide any new authority for developing SSC; that avenue is already available where algae levels are a concern. For these reasons, the department does not expect an additional economic impact based on this change.
Phosphorus assessment procedures using biological metrics. This section clarifies the protocols currently used by the department to assess attainment of the phosphorus criteria, and adds a component that allows a waterbody’s biological response to phosphorus, or lack thereof, to be taken into account before listing it as impaired for phosphorus. This is will provide the benefit of keeping a small number of waters off the impaired waters list that have healthy biological communities, but may have periodic exceedances of the phosphorus statewide criterion. It would not add additional waters to the impaired waters list. No costs are associated with this portion of the rule.
NR 217 calculation of upstream background phosphorus concentrations. The department does not anticipate an economic impact from this revision. Currently, the two methods yield very similar results and alignment of the calculation methods is not expected to have an impact. For a small number of facilities it is possible that this would change the upstream phosphorus concentration used and the resulting calculated limit, but this minor change would not necessitate different treatment types, and economic impacts are not expected.
Definitions. Because the clarifications to definitions are not expected to change the waterbodies included in the categories, only clarify existing interpretation of these terms, no economic impact is expected.
10. Effect on Small Business (initial regulatory flexibility analysis): As discussed above, this rule is not expected to incur additional costs for small businesses.
11. Agency Contact Person: Kristi Minahan, Wisconsin Department of Natural Resources, Bureau of Water Quality WY/3, P.O. Box 7921, Madison, WI 53707-7921;
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Kristi Minahan
Department of Natural Resources
Bureau of Water Quality – WY/3
