Chapter NR 102

NR 102.03(3) (3) “Natural conditions” means the normal daily and seasonal variations in climatic and atmospheric conditions, and the existing physical and chemical characteristics of a water or the course in which it flows.

NR 102.03(4) (4) “Natural temperature” means the normal existing temperature of a surface water including daily and seasonal changes outside the zone of influence of any artificial inputs.

NR 102.03(4e) (4e) “PFOA” means perfluorooctanoic acid in its anionic, cationic, and acidic forms as well as any salts of perfluorooctanoic acid.

NR 102.03(4m) (4m) “PFOS” means perfluorooctane sulfonate, including its anionic, cationic, and acidic forms as well as any salts of perfluorooctane sulfonate.

NR 102.03(4s) (4s) “Reservoir” means a waterbody with a constructed outlet structure intended to impound water and raise the depth of the water by more than two times relative to the conditions prior to construction of the dam, and that has a mean water residence time of 14 days or more under summer mean flow conditions using information collected over or derived for a 30 year period.

NR 102.03(5) (5) “Resource management” means the application of control techniques to enhance or preserve a surface water in accordance with statutory provisions and in the general public interest.

NR 102.03(6) (6) “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).

NR 102.03(6e) (6e) “Seepage lake” means a lake that does not have an outlet stream that continually flows under average summer conditions based on the past 30 years.

NR 102.03(6m) (6m) “Stratified lake or reservoir” means a lake or reservoir where sufficient field data demonstrate that the lake is dimictic or, in absence of sufficient field data, the following equation results in a value of greater than 3.8:

Maximum Depth (meters) - 0.1

Log10Lake Area (hectares)

NR 102.03(6s) (6s) “Stratified two-story fishery lake” or “two-story fishery lake” means a lake greater than 5 acres in size that is typically stratified in the summer, with the potential for an oxygenated hypolimnion, that has documentation at any time since 1975 of a population of cold water fish species such as cisco, whitefish, or trout that is sustained through natural reproduction or long-term active stocking with year-to-year survival.

NR 102.03 Note Note: A list of two-story fishery lakes that contain naturally reproducing lake trout, whitefish, or cisco, or are stocked and managed by the department for brook, brown, rainbow, or lake trout, is available on the department’s designated uses website at https://dnr.wi.gov/topic/SurfaceWater/usedesignations.html.

NR 102.03(7) (7) “Surface waters” means all natural and artificial named and unnamed lakes and all naturally flowing streams within the boundaries of the state, but not including cooling lakes, farm ponds and facilities constructed for the treatment of wastewaters (the term waters as used in this chapter means surface waters).

NR 102.03(7m) (7m) “Total phosphorus” means all of the phosphorus in a water sample analyzed using the methods identified under the provisions of s. NR 219.04 (1).

NR 102.03(8) (8) “Unauthorized concentrations of substances” means pollutants or other chemicals introduced into surface waters without prior permit or knowledge of the department, but not including accidental or unintentional spills.

NR 102.03(9) (9) “U.S. EPA” means the United States environmental protection agency.

NR 102.03 History History: Cr. Register, September, 1973, No. 213, eff. 10-1-73; r. (1), renum. from NR 102.01, Register, February, 1989, No. 398, eff. 3-1-89; cr. (10), Register, May, 1993, No. 449, eff. 6-1-93; CR 07-111: cr. (intro.) and (1), r. (8) to (10), renum. (1) to (7) to be (2) to (8) Register September 2010 No. 657, eff. 10-1-10; CR 19-014: renum. (6) to NR 210.03 (10m), cr. (9) Register April 2020 No. 772, eff. 5-1-20; CR 21-083: cr. (4e), (4m) Register July 2022 No. 799, eff. 8-1-22; CR 19-094: am. (intro), cr. (1c) to (1m), renum. (1o) from NR 102.06 (2) (a), cr. (1q), (1v), renum. (4s) from NR 102.06 (2) (f), cr. (6), renum. (6e), (6m), (6s), (7m) from NR 102.06 (2) (fm), (g), (i), (j) and am. (6m), (6s) Register September 2022 No. 801, eff. 10-1-22; correction in (1q) made under s. 13.92 (4) (b) 7., Stats., Register September 2022 No. 801.

NR 102.04 NR 102.04 Categories of surface water uses and criteria.

NR 102.04(1) (1) General. To preserve and enhance the quality of waters, surface water uses and criteria are established to govern water management decisions. Practices attributable to municipal, industrial, commercial, domestic, agricultural, land development or other activities shall be controlled so that all surface waters including the mixing zone meet the following conditions at all times and under all flow and water level conditions:

NR 102.04(1)(a) (a) Substances that will cause objectionable deposits on the shore or in the bed of a body of water, shall not be present in such amounts as to interfere with public rights in waters of the state.

NR 102.04(1)(b) (b) Floating or submerged debris, oil, scum or other material shall not be present in such amounts as to interfere with public rights in waters of the state.

NR 102.04(1)(c) (c) Materials producing color, odor, taste or unsightliness shall not be present in such amounts as to interfere with public rights in waters of the state.

NR 102.04(1)(d) (d) Substances in concentrations or combinations which are toxic or harmful to humans shall not be present in amounts found to be of public health significance, nor shall substances be present in amounts which are acutely harmful to animal, plant or aquatic life.

NR 102.04 Note Note: For levels of public health significance for PFOA and PFOS, see s. NR 102.04 (8) (d) 1.

NR 102.04(2) (2) Revised uses and criteria. The following uses and criteria may be revised as new information or advancing technology indicate that revisions are in the public interest. Water used for hydropower and commercial shipping depends mainly on quantity, depth and elevation; consequently, no specific quality criteria for these uses have been prepared.

NR 102.04(3) (3) Fish and other aquatic life uses. All surface waters shall belong in one of the fish and other aquatic life subcategories described in this subsection. Only those use subcategories identified in pars. (a) to (c) shall be considered suitable for the protection and propagation of a balanced fish and other aquatic life community as provided in the federal water pollution control act amendments of 1972, P.L. 92-500; 33 USC 1251 et seq.

NR 102.04(3)(a) (a) Cold water communities. This subcategory includes surface waters capable of supporting a community of cold water fish and other aquatic life, or serving as a spawning area for cold water fish species. This subcategory includes, but is not restricted to, surface waters identified as trout water by the department of natural resources (Wisconsin Trout Streams, publication 6-3600 (80)).

NR 102.04(3)(b) (b) Warm water sport fish communities. This subcategory includes surface waters capable of supporting a community of warm water sport fish or serving as a spawning area for warm water sport fish.

NR 102.04(3)(c) (c) Warm water forage fish communities. This subcategory includes surface waters capable of supporting an abundant diverse community of forage fish and other aquatic life.

NR 102.04(3)(d) (d) Limited forage fish communities. (Intermediate surface waters). This subcategory includes surface waters of limited capacity and naturally poor water quality or habitat. These surface waters are capable of supporting only a limited community of forage fish and other aquatic life.

NR 102.04(3)(e) (e) Limited aquatic life. (Marginal surface waters). This subcategory includes surface waters of severely limited capacity and naturally poor water quality or habitat. These surface waters are capable of supporting only a limited community of aquatic life.

NR 102.04(4) (4) Criteria for fish and aquatic life. Except for natural conditions, all waters classified for fish and aquatic life shall meet the following criteria:

NR 102.04(4)(a) (a) Dissolved oxygen.

NR 102.04(4)(a)1. 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.

NR 102.04(4)(a)2. 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.

NR 102.04(4)(a)3. 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:

NR 102.04(4)(a)3.a. a. A minimum dissolved oxygen concentration of 6.0 mg/L at all times.

NR 102.04(4)(a)3.b. 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.

NR 102.04 Note 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.

NR 102.04(4)(a)3.c. 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.

NR 102.04(4)(a)4. 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.

NR 102.04(4)(a)5. 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:

NR 102.04(4)(a)5.a. a. For a coldwater community with an approved use attainability analysis that redesignates it as warmwater, a minimum dissolved oxygen concentration of 5 mg/L at all times.

NR 102.04(4)(a)5.b. b. For any other community except those under subd. 7., a minimum dissolved oxygen concentration of 3 mg/L at all times to protect aquatic life.

NR 102.04 Note Note: Waterbodies described in subd. 5. are also known as altered waters.

NR 102.04(4)(a)6. 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.

NR 102.04(4)(a)7. 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.

NR 102.04(4)(am) (am) Oxythermal layer thickness for two-story fishery lakes.

NR 102.04(4)(am)1. 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:

NR 102.04(4)(am)1.a. a. For a two-story fishery lake with lake trout, 57°F or less.

NR 102.04(4)(am)1.b. b. For a two-story fishery lake with whitefish but not lake trout, 66°F or less.

NR 102.04(4)(am)1.c. 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.

NR 102.04(4)(am)1.d. 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.

NR 102.04(4)(am)2. 2. ‘Assessment.’

NR 102.04(4)(am)2.a. 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. Samples taken outside this time frame but during summer stratification may also be used to determine assessment.

NR 102.04 Note Note: Reservoirs, multi-lobed lakes, or very large lakes may need more than one sampling station to assess the lake.

NR 102.04(4)(am)2.b. b. If at any time during a lake’s summer stratification the applicable criterion in subd. 1. is not met, that year is an exceedance year. At least 2 years of data are needed to make an attainment determination. If any 2 or more years within the most recent 5-year period are exceedance years, the lake is not attaining the water quality criterion. If insufficient data are available from the most recent 5-year period, data from up to 10 years may be used if representative of current conditions.

NR 102.04(4)(c) (c) pH. The pH shall be within the range of 6.0 to 9.0, with no change greater than 0.5 units outside the estimated natural seasonal maximum and minimum.

NR 102.04(4)(d) (d) Toxic 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.

NR 102.04(4)(e) (e) Temperature. Water quality criteria for temperature shall be determined and applied pursuant to subch. II. Heated effluent shall not cause lethality, inside or outside of the mixing zone, to animal, plant or other aquatic life.

NR 102.04(4)(f) (f) Other criteria. Surface waters shall meet all other criteria that correspond to the appropriate aquatic life subcategory for the surface water, including narrative criteria specified in sub. (1).

NR 102.04(5) (5) Recreational use.

NR 102.04(5)(a) (a) General. All surface waters shall be suitable for supporting recreational use and shall meet the criteria specified in sub. (6).

NR 102.04(5)(b) (b) Exceptions. Whenever the department determines, in accordance with the procedures specified in s. NR 210.06 (3), that wastewater disinfection is not required to protect recreational uses, the criteria specified in sub. (6) (a) and in chs. NR 103 and 104 do not apply.

NR 102.04(6) (6) Criteria for recreational use. Bacteria criteria are established as follows to protect humans from illness caused by fecal contamination due to recreational contact with surface water:

NR 102.04(6)(a) (a) Bacteria.

NR 102.04(6)(a)1. 1. ‘Criteria.’ All of the Escherichia coli (E. coli) criteria in Table A apply unless bacteria site-specific criteria have been adopted pursuant to subd. 2.

NR 102.04 Note Note: The department developed the E. coli criteria in this section based on criteria developed by U.S. EPA. U.S. EPA developed the E. coli criteria using membrane filtration methods to count E. coli colony forming units. Entities wishing to use quantitative polymerase chain reaction (qPCR) and a conversion factor to compare resulting E. coli counts to the criteria in Table A may seek U.S. EPA and department approval for using alternative indicators and methods as outlined in U.S. EPA technical support document EPA-820-R-14-011.

NR 102.04 Note Note: Under the department’s beach advisory program, a beach advisory is issued when a beach reaches the “Beach Action Value” of 235 counts per 100 mL and a beach closure is issued at 1000 counts per 100 mL, unless site-specific conditions indicate use of an alternate metric. More information on the beach advisory program is available at http://wibeaches.us.

NR 102.04(6)(a)2. 2. ‘Site-specific criteria.’

NR 102.04(6)(a)2.a. a. The department may establish bacteria site-specific criteria by rule to protect a waterbody’s recreational use when it is determined that the statewide E. coli criteria under subd. 1. are inappropriate due to site-specific conditions. Once bacteria site-specific criteria are adopted in a rule and approved by U.S. EPA, those criteria supersede the statewide E. coli criteria under subd. 1. for that waterbody.

NR 102.04(6)(a)2.b. b. Any interested party may submit proposed bacteria site-specific criteria for a waterbody to the department for review and consideration. Any request for bacteria site-specific criteria must include a demonstration that the proposed site-specific criteria were developed using a U.S. EPA approved method, procedure, or test, are based on sound scientific rationale, and are as protective of the recreational use as the statewide E. coli criteria in subd. 1. A request for a less-stringent site-specific criteria must also demonstrate that the predominant source of the bacteria is non-human or non-fecal.

NR 102.04(7) (7) Public health and welfare use.

NR 102.04(7)(a) (a) General. All surface waters shall be suitable for supporting public health and welfare.

NR 102.04(7)(b) (b) Exceptions. Whenever the department determines a discharge of heated effluent is not exposed or situated in a manner that may pose a realistic potential for scalding of humans, the criterion specified in sub. (8) (c) does not apply.

NR 102.04(8) (8) Criteria for public health and welfare use.

NR 102.04(8)(a) (a) General. The criteria developed pursuant to ss. NR 105.08 and 105.09 shall be met regardless of whether the surface water is used for public drinking water supply or the applicable fish and aquatic life subcategory.

NR 102.04(8)(b) (b) Taste and odor criteria. All surface waters providing public drinking water supplies or classified as cold water or warm water sport fish communities as described in sub. (3) shall meet the taste and odor criteria specified or developed pursuant to s. NR 102.14.

NR 102.04(8)(c) (c) Temperature criteria. To protect humans from being scalded, the water temperature of a discharge may not exceed 120oF unless specifically authorized under provisions in subchs. V or VI of ch. NR 106.

NR 102.04(8)(d) (d) PFOS and PFOA criteria and assessment.

NR 102.04(8)(d)1. 1. Surface waters shall meet all of the following criteria for PFOS and PFOA at all times and under all flow and water level conditions:

NR 102.04(8)(d)1.a. a. In order to protect against adverse public health impacts from consumption of fish taken from surface waters, concentrations of PFOS shall not be present in amounts found to be of public health significance, which is 8 parts per trillion, except in waters that cannot naturally support fish and do not have downstream waters that support fish.

NR 102.04(8)(d)1.b. b. In order to protect against adverse public health impacts from the incidental consumption of surface waters associated with recreational activities in the water, concentrations of PFOA shall not be present in amounts found to be of public health significance, which is 95 parts per trillion for surface waters not classified as public water supplies under ch. NR 104.

NR 102.04(8)(d)1.c. c. In order to protect against adverse public health impacts from consumption of drinking water supplied by surface waters, concentrations of PFOA shall not be present in amounts found to be of public health significance, which is 20 parts per trillion for surface waters classified as public water supplies under ch. NR 104.

NR 102.04(8)(d)2. 2. The PFOS and PFOA criteria in subd. 1. shall be met in surface waters, and a surface water shall be considered an impaired water as defined in s. NR 151.002 (16m) if any of the criteria are exceeded more than once every 3 years. Permit requirements shall be implemented following the procedures under subch. VIII of ch. NR 106.

NR 102.04(9) (9) Wildlife use and criteria.

NR 102.04(9)(a) (a) Use. All surface waters shall be suitable for supporting wildlife.

NR 102.04(9)(b) (b) Criteria. The criteria specified in or developed pursuant to s. NR 105.07 shall be met.