Chapter 283

283.13 Cross-reference Cross-reference: See also NR 200- and ch. NR 106, Wis. adm. code.

283.15 283.15 Variances to water quality standard.

283.15(1) (1) Definition. In this section, “variance” means a variance to a water quality standard adopted under s. 281.15.

283.15(2) (2) Request for variance.

283.15(2)(a) (a) If a permit contains a variance or if a permittee anticipates that a reissued permit will include a water quality based effluent limitation under s. 283.13 (5), when the permittee applies for reissuance of the permit the permittee may apply to the department for renewal of the variance or for a variance from the water quality standard that would be used to derive the water quality based effluent limitation.

283.15(2)(am) (am)

283.15(2)(am)1. 1. Within 60 days after the department reissues or modifies a permit to include a water quality based effluent limitation under s. 283.13 (5), the permittee may apply to the department for a variance from the water quality standard used to derive the limitation.

283.15(2)(am)2. 2. After an application for a variance is submitted to the department under subd. 1., and until the last day for seeking review of the secretary’s final decision on the application or a later date fixed by order of the reviewing court, the water quality based effluent limitation under s. 283.13 (5) and the corresponding compliance schedule are not effective. All other provisions of the permit continue in effect except those for which a petition for review has been submitted under s. 283.63. For those provisions for which an application for variance has been submitted under this section, the corresponding or similar provisions of the prior permit continue in effect until the last day for seeking review of the department’s final decision or a later date fixed by order of the reviewing court.

283.15(2)(b) (b) The department shall specify by rule the information to be included in an application under this subsection.

283.15(2)(c) (c) The department may request additional information from the permittee within 30 days after receiving an application under par. (am) 1. The permittee shall provide the additional information within 30 days after receipt of the department’s request. An application is not complete until the additional information is provided to the department.

283.15(2)(d) (d) If the permittee does not provide information as required under par. (b) or (c), the department shall deny the application.

283.15(3) (3) Tentative decision.

283.15(3)(a) (a) The secretary shall issue a tentative decision on an application for a variance under sub. (2) (a) in the notice under s. 283.39 for the reissuance of the permit.

283.15(3)(b) (b) The secretary shall issue a tentative decision on an application for a variance under sub. (2) (am) 1. within 120 days after receipt of a completed application. The department shall circulate the tentative decision to the permittee and to the parties in s. 283.53 (2) (c). If the tentative decision is to grant a variance based upon one or more of the conditions specified in sub. (4) (a) 1. a. to e., the department shall include in the notice under this paragraph a statement on the effect of the variance, if granted, on the designated use of the water body during the term of the underlying permit. The department shall provide a 30-day period for written comments on the tentative decision.

283.15(4) (4) Final decision on variance.

283.15(4)(a) (a)

283.15(4)(a)1. 1. The secretary shall approve all or part of a requested variance, or modify and approve a requested variance if the permittee demonstrates, by the greater weight of the credible evidence, that attaining the water quality standard is not feasible because:

283.15(4)(a)1.a. a. Naturally occurring pollutant concentrations prevent the attainment of the standard;

283.15(4)(a)1.b. b. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the standard, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating water conservation requirements;

283.15(4)(a)1.c. c. Human caused conditions or sources of pollution prevent the attainment of the standard and cannot be remedied or would cause more environmental damage to correct than to leave in place;

283.15(4)(a)1.d. d. Dams, diversions or other types of hydrologic modifications preclude the attainment of the standard, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the standard;

283.15(4)(a)1.e. e. Physical conditions related to the natural features of the water body, such as the lack of proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or

283.15(4)(a)1.f. f. The standard, as applied to the permittee, will cause substantial and widespread adverse social and economic impacts in the area where the permittee is located.

283.15(4)(a)2. 2. The secretary shall deny a requested variance if the permittee fails to make the demonstration required under subd. 1.

283.15(4)(d) (d) The decision under this subsection is reviewable under subch. III of ch. 227, except that ss. 227.40 to 227.46, 227.485 to 227.51 and 227.60 do not apply to the decision under this subsection.

283.15(4m) (4m) Variances for fish farms. In deciding whether to grant an application for a variance for a fish farm, the secretary shall rely on the same guidance documents and other information that would be used by the federal environmental protection agency to review and approve or disapprove the variance as required under 40 CFR 131.14.

283.15(5) (5) Conditions on variances.

283.15(5)(a) (a) A variance applies only to the permittee requesting the variance and to the pollutant specified in the variance. A variance does not affect or require the department to modify the corresponding water quality standard adopted under s. 281.15.

283.15(5)(b) (b) A variance applies for the term established by the secretary, but not to exceed 5 years. The term of the initial variance and any renewals thereof may not exceed the time that the secretary determines is necessary to achieve the water quality based effluent limitation. Initial and interim effluent limitations established under par. (c) 1. apply, as appropriate, for the term of the underlying permit as reissued or modified to implement the decision under sub. (4) (a) 1. or as extended by operation of s. 227.51 (2). Notwithstanding sub. (4) (d), s. 227.51 (2) shall apply for the purposes of continuing the provisions of a permit pending the reissuance of a permit.

283.15(5)(c) (c) The department shall require all of the following in a permit reissued or modified to implement a variance:

283.15(5)(c)1. 1. Compliance with an initial effluent limitation that at the time the variance is approved represents the level currently achievable by the permittee and that is no less stringent than the effluent limitation achieved under the permit before reissuance. At the time a variance is approved a compliance schedule and an interim effluent limitation that is achievable by the permittee during the term of the variance may be specified. The initial and the interim effluent limitations may not be less stringent than a categorical effluent limitation that applies to the permittee under s. 283.13 (2) or (4) or 283.19 or a toxic effluent standard that applies to the permittee under s. 283.21.

283.15(5)(c)2. 2. Investigation of treatment technologies, process changes, pollution prevention, wastewater reuse or other techniques that may result in compliance by the permittee with the water quality standard adopted under s. 281.15, and submission of reports on the investigations at such times as required by the department. The secretary shall modify or waive the requirements specified in this subdivision if the secretary determines, based upon comments received on the tentative decision under sub. (3), that the requirements of this subdivision are:

283.15(5)(c)2.a. a. Reasonably beyond the technical or financial capability of the permittee; or

283.15(5)(c)2.b. b. Unreasonable in light of the conditions specified in sub. (4) (a) 1. a. to e.

283.15(5)(d) (d) The department may impose conditions in the permit as necessary to administer the variance including, but not limited to, additional monitoring requirements.

283.15(6) (6) Renewal. A variance may not be renewed if the permittee did not submit the reports required under sub. (5) (c) 2. or substantially comply with all other conditions of the variance.

283.15(7) (7) Delegation of secretary’s authority. The secretary may designate an officer or employee of the department to make any decision that the secretary is required to make under this section.

283.15(8) (8) No right to a hearing. Notwithstanding s. 227.42, there is no right to a hearing under this section.

283.15(9) (9) Relation to permit review. If the secretary approves part or all of a variance or modifies and approves the variance under this section and the department issues a modified water quality based effluent limitation under s. 283.63 for the same substance, the permittee shall comply with the least stringent of the 2 effluent limitations.

283.15(10) (10) Applicability.

283.15(10)(a) (a) Subsections (2) to (5) do not apply if the water quality based effluent limitation results from the decision of the department under s. 283.63 to make the water quality based effluent limitation less stringent than the effluent limitation in the permit as issued, reissued or modified.

283.15(10)(b) (b) Subsections (2) to (5) apply if the water quality based effluent limitation results from the decision of the department under s. 283.63 to make the water quality based effluent limitation more stringent than the effluent limitation in the permit as issued, reissued or modified.

283.15(10)(c) (c) This section does not apply to the issuance, reissuance or modification of a permit to incorporate a toxic effluent standard or prohibition promulgated by rule under s. 283.11 (4) or 283.21.

283.15(11) (11) Water quality standards review. As part of the review of water quality standards under s. 281.15 (6), as required by 33 USC 1313 (c) (1), the department shall review the variances to water quality standards approved under s. 283.15 or 283.16. The department shall receive information regarding these variances at the public hearing held under s. 281.15 (6). If the department determines that a water quality standard to which a variance applies is attainable, the department shall modify the standard or variance accordingly at the time the permit containing the variance is reissued, modified, or revoked and reissued.

283.15(12) (12) Federal requirements. Notwithstanding any of the provisions of this section, the department shall comply with the provisions of 40 CFR 131.14 when approving and implementing a variance under this section.

283.15 History History: 1973 c. 74; 1979 c. 221 s. 2202 (39); 1985 a. 29; 1987 a. 27, 60; 1995 a. 227 s. 861; Stats. 1995 s. 283.15; 2011 a. 32; 2015 a. 205; 2017 a. 21.

283.15 Cross-reference Cross-reference: See also ch. NR 212 and s. NR 200.01, Wis. adm. code.

283.16 283.16 Statewide variance for phosphorus.

283.16(1) (1) Definitions. In this section:

283.16(1)(a) (a) “Basin” means the drainage area identified by an 8-digit hydrologic unit code, as determined by the U.S. Geological Survey.

283.16(1)(b) (b) “Category” means a class or category of point sources specified by the department under s. 283.13 (1) or publicly owned treatment works.

283.16(1)(d) (d) “Existing source” means a point source that was covered by a permit on December 1, 2010.

283.16(1)(e) (e) “Major facility upgrade” means the addition of new treatment equipment and a new treatment process.

283.16(1)(g) (g) “Nonpoint source” has the meaning given in s. 281.16 (1) (e).

283.16(1)(h) (h) “Target value” means the following:

283.16(1)(h)1. 1. For a point source in a watershed for which a federally approved total maximum daily load under 33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the point source complied with its effluent limitation based on the total maximum daily load in effect on April 25, 2014.

283.16(1)(h)2. 2. For a point source in a watershed for which no federally approved total maximum daily load under 33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the average concentration of phosphorus in the effluent discharged by the point source during the year was 0.2 milligrams per liter.

283.16(1)(i) (i) “Water quality based effluent limitation” means an effluent limitation under s. 283.13 (5), including an effluent limitation based on a total maximum daily load under 33 USC 1313 (d) (1) (C) approved by the federal environmental protection agency.

283.16(2) (2) Initial determination concerning the water quality standard for phosphorus.

283.16(2)(a) (a) The department of administration, in consultation with the department of natural resources, shall determine whether attaining the water quality standard for phosphorus, adopted under s. 281.15, through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible because it would cause substantial and widespread adverse social and economic impacts on a statewide basis. The department of administration may make separate determinations under this paragraph for statewide categories of point sources.

283.16(2)(b) (b) The department of administration shall include all of the following in its determination under par. (a), based on water quality based effluent limitations for phosphorus determined by the department of natural resources:

283.16(2)(b)1. 1. A calculation of the statewide cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades.

283.16(2)(b)2. 2. A calculation of the statewide per household cost for water pollution control by publicly owned treatment works that cannot achieve compliance with water quality based effluent limitations for phosphorus without major facility upgrades, including the projected costs of compliance with those water quality based effluent limitations, and a calculation of the percentage of median household income the per household cost represents.

283.16(2)(b)4. 4. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause substantial adverse social and economic impacts on a statewide basis.

283.16(2)(b)5. 5. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause widespread adverse social and economic impacts on a statewide basis.

283.16(2)(c) (c) The department of administration shall make a preliminary determination under par. (a) no later than the 240th day after April 25, 2014. The department of administration shall provide public notice, through an electronic notification system that it establishes or selects, of its preliminary determination and shall provide the opportunity for public comment on the preliminary determination for at least 30 days following the public notice.

283.16(2)(d) (d) The department of administration shall consider any public comments in making its final determination under par. (a) and shall make the final determination no later than the 30th day after the end of the public comment period.

283.16(2)(e) (e) The department of administration shall send a notice that describes its final determination under par. (a) to the legislative reference bureau for publication in the administrative register.

283.16(2)(em) (em) If the department of administration determines under par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the department of natural resources shall seek approval under 40 CFR Part 131 from the federal environmental protection agency for the variance under this section.

283.16(2)(f) (f) If the department of administration determines under par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the determination remains in effect until the department of administration finds under sub. (3) (c) that the determination is no longer accurate.

283.16(2m) (2m) Water quality standards review. As part of the review of water quality standards under s. 281.15 (6), as required by 33 USC 1313 (c) (1), if the variance under this section is in effect, the department shall determine whether formal review under sub. (3) should be undertaken, considering any comments it receives on the variance.

283.16(3) (3) Review of findings and requirements of variance.

283.16(3)(a) (a) Within 10 years after the federal environmental protection agency approves, under sub. (2) (em), the variance under this section, if a determination under sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible is in effect, or upon a determination under sub. (2m) that review under this subsection should be undertaken, the department of administration, in consultation with the department of natural resources, shall prepare a report, no later than September 1, to evaluate whether the determination under sub. (2) (a) remains accurate. The department of administration shall consult with permittees that would be subject to water quality based effluent limitations for phosphorus and other interested parties in preparing the report.

283.16(3)(b) (b) The department of natural resources shall provide all of the following to the department of administration for the report under par. (a):

283.16(3)(b)1. 1. A determination of whether technology is reasonably available for point sources to comply with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a).

283.16(3)(b)2. 2. A determination of whether technology is reasonably available for any category of point sources to comply with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a).

283.16(3)(b)3. 3. A determination of whether any technology that is reasonably available for compliance with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a) is cost effective.

283.16(3)(b)4. 4. The results of the most recent review under sub. (3m) (a).

283.16(3)(c) (c) Based on its report under par. (a), the department of administration, in consultation with the department of natural resources, shall decide whether the determination that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible remains accurate.

283.16(3)(cm) (cm) If the department of administration decides under par. (c) that the determination remains accurate, the department of natural resources shall decide whether it is appropriate to apply more stringent effluent limitations than those in sub. (6) (a) to all point sources or to any category of point sources, based on the availability and cost effectiveness of technology for compliance and, if so, specify those more stringent effluent limitations based on the report under par. (a).

283.16(3)(d) (d) The department of administration shall provide public notice of its preliminary decisions under par. (c) no later than the 60th day after preparing the report under par. (a) and shall provide the opportunity for public comment on the decisions for at least 30 days following the public notice.

283.16(3)(e) (e) The department of administration shall consider any public comments in making its final decisions under par. (c) and shall make the final decisions no later than the 30th day after the end of the public comment period.

283.16(3)(f) (f) The department of administration shall send a notice that describes its final decisions under par. (c) to the legislative reference bureau for publication in the administrative register.

283.16(3)(g) (g) If the department of administration decides under par. (c) that the determination described in that paragraph remains accurate, the department of natural resources shall seek aproval from the federal environmental protection agency under 40 CFR 131.21 for renewal of the variance under this section.

283.16(3m) (3m) Highest attainable condition review.

283.16(3m)(a) (a) Every 5 years after the variance under this section is approved by the federal environmental protection agency, the department shall, as part of the review required by 40 CFR 131.14 (b) (1) (v), review the interim effluent limitations under sub. (6) (a), or any other effluent limitations that are in effect as a result of a previous review under this subsection or sub. (3), and determine whether they are consistent with the highest attainable condition for the point sources and categories of point sources that are eligible for the variance under this section. In conducting this review, the department shall use all existing and readily available information. The department shall hold a public hearing in order to receive additional information and public comment. The department shall publish notice of the hearing on the department’s Internet site at least 45 days before the hearing date.

283.16(3m)(b) (b) The department shall submit the results of a review under this subsection to the federal environmental protection agency within 30 days after determining that the review under par. (a) has been completed.

283.16(3m)(c) (c) If the department does not conduct a review within the time specified under par. (a), the variance under this section will cease to be available until the department completes the review and submits the results of the review to the federal environmental protection agency.

283.16(3m)(d) (d) If the department does not submit the results of a review to the federal environmental protection agency within the time specified under par. (b), the variance under this section will cease to be available until the department submits the results of the review to the federal environmental protection agency.