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
PO Box 7921
Madison WI 53707
Madison: Department of Natural Resources, 101 S. Webster St., Madison, WI 53707, Room G09
Green Bay: DNR Service Center, 2984 Shawano Ave, Green Bay WI 54313, Lake Michigan Room
Section 1. NR 102.03 (intro.) is amended to read:
NR 102.03 Definitions. In this chapter, the following definitions are applicable to terms usedapply:
Section 2. NR 102.03 (1c), (1e), (1g), (1i), (1k), (1m), (1q), (1v), (6d), and (9) are created to read:
NR 102.03 (1c) “Benthic” means relating to the ecological zone at the bottom of a body of water, including the sediment surface and subsurface layers.
(1e) “Biocriterion” means a surface water quality criterion under subch. III that describes the structure and function of aquatic communities in a waterbody necessary to protect its designated aquatic life use.
(1g) “Chlorophyll a” means a green pigment present in all green plants and in cyanobacteria, responsible for the absorption of light to provide energy for photosynthesis.
(1i) “Clean Water Act” means the federal Clean Water Act of 1972 and amendments.
(1k) “Confidence interval” means a range within which the true value of a parameter is likely to occur, with a specified level of confidence.
(1m) “Diatom” means a common and diverse group of unicellular algae of the phylum Chrysophyta, having cell walls containing silica.
(1q) “Impounded flowing water” means a waterbody impounded by a constructed outlet structure on a river or stream that is not a reservoir as defined in sub. (4m).
(1v) “Macrophyte” means an aquatic plant large enough to be seen without the use of a microscope.
(6d) “Section 303 (d) list” means a list of waters that do not attain water quality standards and require a total maximum daily load analysis, as specified under section 303 (d) of the Clean Water Act, 33 USC 1313 (d). (9) “U.S. EPA” means the United States environmental protection agency.
Section 3. NR 102.04 (4) (a) is repealed and recreated to read:
NR 102.04 (4) (a) Dissolved oxygen. 1. For streams, rivers, and impounded flowing waters, dissolved oxygen criteria apply to samples taken from the main channel near the area with greatest flow. For lakes or reservoirs, the dissolved oxygen criteria in this paragraph apply to the epilimnion of stratified lakes and to all but the deepest one meter of the water column of unstratified lakes.
2. Except as provided in subds. 3. to 7. and par. (am), surface waters shall attain a minimum dissolved oxygen concentration of 5 mg/L at all times.
3. A waterbody classified by the department as a trout class I or II water under s. NR 1.02 (7), a cold water community that is not a two-story fishery lake covered under par. (am), or a great lakes tributary used by salmonids for spawning during the period of habitation, shall attain all of the following: a. A minimum dissolved oxygen concentration of 6.0 mg/L at all times.
b. A minimum dissolved oxygen concentration of 7.0 mg/L when cold water fish are spawning through fry emergence from their redds, or gravel nests.
Note: The period from spawning through fry emergence from their gravel nests is approximately mid-October through April, but varies depending on water temperature and location in the state.
c. Dissolved oxygen concentrations and diurnal patterns may not be altered from natural background levels to such an extent that cold water populations are adversely affected.
4. A waterbody classified by the department as trout class III under s. NR 1.02 (7) shall attain a minimum dissolved oxygen concentration of 6.0 mg/L at all times. 5. A waterbody for which a use attainability analysis under 40 CFR 131.10 (g) (1) to (6) demonstrates that its otherwise applicable designated use category is unattainable shall attain the following: a. For a waterbody otherwise designated as a coldwater community, a minimum dissolved oxygen concentration of 5 mg/L at all times.
b. For any other community, a minimum dissolved oxygen concentration of 3 mg/L at all times.
Note: Waterbodies described in subd. 5 are also known as altered warmwater or altered macroinvertebrate waters.
6. A waterbody designated by the department as limited forage fish shall attain a minimum dissolved oxygen concentration of 3 mg/L at all times.
7. A waterbody designated by the department as limited aquatic life or wetlands, or classified as diffuse surface waters or wastewater effluent channels shall attain a minimum dissolved oxygen concentration of 1 mg/L at all times when water is present.
Section 4. NR 102.04 (4) (am) is created to read:
NR 102.04 (4) (am) Oxythermal layer thickness for two-story fishery lakes. 1. ‘Criteria.’ A two-story fishery lake shall maintain, during its period of summer stratification, an oxythermal layer of at least 1 meter in thickness that maintains both a dissolved oxygen concentration of at least 6 mg/L and a maximum temperature of the following:
a. For a two-story fishery lake with lake trout, 57° F or less.
b. For a two-story fishery lake with whitefish but not lake trout, 66° F or less.
c. For a two-story fishery lake with cisco but not whitefish or lake trout, or that the department manages for brook, brown, or rainbow trout, 73°F or less.
d. For a two-story fishery lake with multiple coldwater fish species, the applicable criterion under subd. 1. a. to c. is that for the lake’s species requiring the lowest temperature.
2. ‘Assessment.’ a. The monitoring period for the criteria under subd. 1. is June 1 to September 15. When monitoring for assessment purposes, depth profiles of temperature and dissolved oxygen shall, whenever possible, be taken in increments of 1 meter or less near the deepest part of the lake, at least monthly July to September.
Note: Reservoirs, multi-lobed lakes, or very large lakes may need more than one sampling station to assess the lake.
b. During any given year, if at any point the applicable criterion in subd. 1. is not met, that year is an exceedance year. If more than one third of years sampled within the most recent 10-year period are exceedance years, the lake is not attaining the water quality criterion and shall be listed on the section 303 (d) list.
Section 5. NR 102.04 (4) (b) is repealed.
Section 6. NR 102.04 (4) (d) is amended to read:
NR 102.04 (4) (d) OtherToxic substances. Unauthorized concentrations of substances are not permitted that alone or in combination with other materials present are toxic to fish or other aquatic life. Surface waters shall meet the acute and chronic criteria as set forth in or developed pursuant to ss. NR 105.05 and 105.06. Surface waters shall meet the criteria which correspond to the appropriate fish and aquatic life subcategory for the surface water, except as provided in s. NR 104.02 (3).
