Chapter NR 105

NR 105.03(30) (30) “Water quality parameter” means one of the indicators available for describing the distinctive quality of water including, but not limited to, hardness, pH, or temperature.

NR 105.03 History History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; renum. (5) to (19) to be (11), (13) to (15), (17), (19) to (24), (26), (27) and (30), cr. (5) to (7), (9), (10), (12), (16), (18), (25), (28) and (29) and am. (8), (11) and (24), Register, August, 1997, No. 500, eff. 9-1-97.

NR 105.04 NR 105.04 Determination of adverse effects.

NR 105.04(1) (1) Substances may not be present in surface waters at concentrations which adversely affect public health or welfare, present or prospective uses of surface waters for public or private water supplies, or the protection or propagation of fish or other aquatic life or wild or domestic animal life.

NR 105.04(2) (2) A substance shall be deemed to have adverse effects on fish or other aquatic life if it exceeds any of the following more than once every 3 years:

NR 105.04(2)(a) (a) The acute toxicity criterion as specified in s. NR 105.05, or

NR 105.04(2)(b) (b) The chronic toxicity criterion as specified in s. NR 105.06.

NR 105.04(2)(c) (c) The acute and chronic toxicity criteria for ammonia nitrogen shall be determined on a case-by-case basis by the department for the appropriate aquatic life use category.

NR 105.04(3) (3) A substance shall be deemed to have adverse effects on wildlife if it exceeds the wildlife criterion as specified in s. NR 105.07.

NR 105.04(4) (4) A substance shall be deemed to have adverse effects on public health and welfare if it exceeds any of the following:

NR 105.04(4)(a) (a) The human threshold criterion as specified in s. NR 105.08; or

NR 105.04(4)(b) (b) The human cancer criterion as specified in s. NR 105.09; or

NR 105.04(4)(c) (c) The taste and odor criterion as specified in s. NR 102.14.

NR 105.04(4m) (4m) The presence of PFOA as defined in s. NR 102.03 (4e), as well as the presence of PFOS as defined in s. NR 102.03 (4m), shall be deemed to have adverse effects on public health and welfare if these substances exceed the public health significance levels in s. NR 102.04 (8) (d) 1.

NR 105.04(5) (5) A substance shall be deemed to have adverse effects or the reasonable potential to have adverse effects on aquatic life, wildlife or human health, if it exceeds a secondary value determined according to the procedures in ss. NR 105.05 to 105.08.

NR 105.04(6) (6) The determination of the criteria or secondary values for substances as calculated under ss. NR 105.05 to 105.09 shall be based upon the available scientific data base. References to be used in obtaining scientific data may include, but are not limited to:

NR 105.04(6)(a) (a) “Water Quality Criteria 1972”, EPA-R3-73-033, National Academy of Sciences, National Academy of Engineering, United States Government Printing Office, Washington, D.C., 1974.

NR 105.04(6)(b) (b) “Quality Criteria for Water”, EPA-440/9-76-003, United States Environmental Protection Agency, Washington, D.C., 1976.

NR 105.04(6)(c) (c) October 1980 and January 1985 U.S. Environmental Protection Agency (EPA) ambient water quality criteria documents.

NR 105.04(6)(d) (d) “Public Health Related Groundwater Standards: Summary of Scientific Support Documentation for NR 140.10”, Wisconsin Department of Health and Social Services, Division of Health, September 1985.

NR 105.04(6)(e) (e) “Public Health Related Groundwater Standards - 1986: Summary of Scientific Support Documentation for NR 140.10”, Wisconsin Department of Health and Social Services, Division of Health, June 1986.

NR 105.04(6)(f) (f) Health advisories published on March 31, 1987 by EPA, Office of Drinking Water.

NR 105.04(6)(g) (g) Any other reports, documents or information published by EPA or any other federal agency.

NR 105.04(6)(h) (h) Any other reports, documents or information that the department, deems to be reliable.

NR 105.04(7) (7) When reviewing any of the references in sub. (6) to determine the effect of a substance, the department:

NR 105.04(7)(a) (a) Shall use scientific studies on the toxicity of a substance to fish and other aquatic life and wild and domestic animals, indigenous to the state;

NR 105.04(7)(b) (b) May use scientific studies on the toxicity of a substance to fish or other aquatic life, plant, mammalian, avian, and reptilian species not indigenous to the state; and

NR 105.04(7)(c) (c) May consider biomonitoring information to determine the aquatic life toxicity of complex mixtures of toxic substances in addition to the chemical specific criteria specified in this chapter.

NR 105.04 History History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; am. (3), renum. (5) and (6) to be (7) and am. (6) (intro.) and (7) (intro.), cr. (5), Register, August, 1997, No. 500, eff. 9-1-97; CR 21-083: cr. (4m) Register July 2022 No.799, eff. 8-1-22.

NR 105.05 NR 105.05 Acute toxicity criteria and secondary acute values for aquatic life.

NR 105.05(1) (1) Minimum database for acute criterion development.

NR 105.05(1)(a) (a) To derive an acute toxicity criterion for aquatic life, the minimum information required shall be the results of acceptable acute toxicity tests with one or more species of freshwater animal in at least 8 different families provided that of the 8 species:

NR 105.05(1)(a)1. 1. At least one is a salmonid fish in the family Salmonidae in the class Osteichthyes,

NR 105.05(1)(a)2. 2. At least one is a non-salmonid fish from another family in the class Osteichthyes, preferably a commercially or recreationally important warmwater species,

NR 105.05(1)(a)3. 3. At least one is a planktonic crustacean (e.g., cladoceran, copepod),

NR 105.05(1)(a)4. 4. At least one is a benthic crustacean (e.g., ostracod, isopod, amphipod, crayfish),

NR 105.05(1)(a)5. 5. At least one is an insect (e.g., mayfly, dragonfly, damselfly, stonefly, caddisfly, mosquito, midge),

NR 105.05(1)(a)6. 6. At least one is a fish or amphibian from a family in the phylum Chordata not already represented in one of the other subdivisions.

NR 105.05(1)(a)7. 7. At least one is an organism from a family in a phylum other than Arthropoda or Chordata (e.g., Rotifera, Annelida, Mollusca), and

NR 105.05(1)(a)8. 8. At least one is an organism from a family in any order of insect or any other phylum not already represented in subds. 1. to 7.

NR 105.05(1)(a)9. 9. If all 8 of the families in subds. 1. to 8. are represented, an acute toxicity criterion may be developed for surface waters classified as cold water using information on all of those families. If an acute toxicity criterion is developed for surface waters classified as cold water, acute toxicity criteria may also be developed for any of the surface water classifications in s. NR 102.04 (3) (b) to (e) using the procedure in sub. (2) or (3) and data on families in subds. 1. to 8. which are representative of the aquatic life communities associated with those classifications. For each substance, in no case may the criterion for a lower quality fish and aquatic life subcategory as defined in s. NR 102.04 be less than the criterion for a higher quality fish and aquatic life subcategory.

NR 105.05(1)(a)10. 10. For a substance, if all of the families in subds. 1. to 8. are not represented, an acute toxicity criterion may not be developed for that substance. Instead, any available data may be used to develop a secondary acute value (SAV) for that substance according to s. NR 105.02 (3) and sub.(4).

NR 105.05(1)(b) (b) The acceptability of acute toxicity test results shall be judged according to the guidelines in section IV of the United States environmental protection agency’s 1985 “Guidelines for Deriving National Numerical Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses” or 40 CFR Part 132, Appendix A. II, IV and V, as stated on September 1, 1997, is incorporated by reference.

NR 105.05 Note Note: Copies of 40 CFR Part 132, Appendix A Sections II, IV and V are available for inspection in the offices of the department of natural resources, secretary of state and the legislative reference bureau, Madison, WI or may be purchased from the superintendent of documents, US government printing office, Washington, D.C. 20402.

NR 105.05(2) (2) Acute toxicity criteria for substances with toxicity unrelated to water quality parameters. If the acute toxicity of a substance has not been adequately shown to be related to a water quality parameter (i.e., hardness, pH, temperature, etc.), the acute toxicity criterion (ATC) is calculated using the procedures specified in this subsection.

NR 105.05(2)(a) (a)

NR 105.05(2)(a)1. 1. For each species for which at least one acute value is available, the species mean acute value (SMAV) is calculated as the geometric mean of all acceptable acute toxicity tests using the guidelines in sub. (1) (b).

NR 105.05(2)(a)2. 2. For each genus for which one or more SMAVs are available, the genus mean acute value (GMAV) is calculated as the geometric mean of the SMAVs available for the genus.

NR 105.05(2)(b) (b) The GMAVs are ordered from high to low.

NR 105.05(2)(c) (c) Ranks (R) are assigned to the GMAVs from 1 for the lowest to N for the highest. If 2 or more GMAVs are identical, successive ranks are arbitrarily assigned.

NR 105.05(2)(d) (d) The cumulative probability (P) is calculated for each GMAVs as P=R/(N + 1).

NR 105.05(2)(e) (e) The 4 GMAVs are selected which have P closest to 0.05. If there are less than 59 GMAVs, these will always be the lowest GMAVs.

NR 105.05(2)(f) (f) Using the selected GMAVs and Ps, the ATC is calculated using the following:

NR 105.05(2)(f)1. 1. Let EV = sum of the 4 ln GMAVs,
      EW = sum of the 4 squares of the ln GMAVs,
      EP = sum of the 4 P values,
      EPR = sum of the 4 square roots of P, and
      JR = square root of 0.05.

NR 105.05(2)(f)2. 2. S = ((EW - (EV)2 /4)/(EP-(EPR)2 /4))0.5.

NR 105.05(2)(f)3. 3. L = (EV - S(EPR))/4.

NR 105.05(2)(f)4. 4. A = (JR)(S) + L.

NR 105.05(2)(f)5. 5. Final Acute Value (FAV)= eA.

NR 105.05(2)(f)6. 6. ATC = FAV/2.

NR 105.05(2)(g) (g) If, for a commercially, recreationally or ecologically important species, the geometric mean of the acute values from flow-through tests in which the concentration of test material was measured is lower than the calculated ATC [FAV], then that geometric mean is used as the ATC [FAV] instead of the calculated one.

NR 105.05(2)(h) (h) Table 1 contains the acute toxicity criteria for fish and aquatic life subcategories listed in s. NR 102.04 (3) that are calculated using the procedures described in this subsection for substances meeting the database requirements indicated in sub. (1) (a).

NR 105.05(3) (3) Acute toxicity criteria for substances with toxicity related to water quality parameters. If data are available on a substance to show that acute toxicity to 2 or more species is similarly related to a water quality parameter (i.e., hardness, pH, temperature, etc.), the acute toxicity criterion (ATC) is calculated using the procedures specified in this subsection.

NR 105.05(3)(a) (a) For each species for which acceptable acute toxicity tests using the guidelines in sub. (1) (b) are available at 2 or more different values of the water quality parameter, a least squares regression of the acute toxicity values on the corresponding values of the water quality parameter is performed to obtain the slope of the curve that best describes the relationship. Because the most commonly documented relationship is that between hardness and acute toxicity of metals and a log-log relationship fits these data, geometric means and natural logarithms of both toxicity and water quality are used in the rest of this subsection to illustrate this method. For relationships based on other water quality parameters, no transformation or a different transformation might fit the data better, and appropriate changes shall be made as necessary throughout this subsection.

NR 105.05(3)(b) (b) For each species, the geometric mean of the available acute values (W) is calculated and then each of those acute values is divided by the mean for that species. This normalizes the acute values so that the geometric mean of the normalized values for each species individually and for any combination of species is 1.0.

NR 105.05(3)(c) (c) For each species, the geometric mean of the available corresponding water quality parameter values (X) is calculated and then each of those water quality parameter values is divided by the mean for that species. This normalizes the water quality parameter values so that the geometric mean of the normalized values for each species individually and for any combination of species is 1.0.

NR 105.05(3)(d) (d) A least squares regression of all the normalized acute values on the corresponding normalized values of the water quality parameter is performed to obtain the pooled acute slope (V). If the coefficient of determination, or r value, calculated from that regression is found not to be significant based on a standard F-test at a 0.05 level, then the pooled acute slope shall be set equal to zero.

NR 105.05(3)(e) (e) For each species the logarithmic intercept (Y) is calculated using the equation: Y = ln W - V(ln X).

NR 105.05(3)(f) (f)

NR 105.05(3)(f)1. 1. For each species the species mean acute intercept (SMAI) is calculated as eY.

NR 105.05(3)(f)2. 2. For each genus for which one or more SMAIs are available, the genus mean acute intercept (GMAI) is calculated as the geometric mean of the SMAIs available for the genus.

NR 105.05(3)(g) (g) The GMAIs are ordered from high to low.

NR 105.05(3)(h) (h) Ranks (R) are assigned to the GMAIs from 1 for the lowest to N for the highest. If 2 or more GMAIs are identical, successive ranks are arbitrarily assigned.

NR 105.05(3)(i) (i) The cumulative probability (P) is calculated for each GMAI as P=R/(N+1).

NR 105.05(3)(j) (j) The 4 GMAIs are selected which have P closest to 0.05. If there are less than 59 GMAIs, these will always be the lowest GMAIs.

NR 105.05(3)(k) (k) Using the selected GMAIs and Ps, the ATC is calculated using the following:

NR 105.05(3)(k)1. 1. Let EV = sum of the 4 ln GMAIs,
      EW = sum of the 4 squares of the ln GMAIs,
      EP = sum of the 4 P values,
      EPR = sum of the 4 square roots of P, and
      JR = square root of 0.05.

NR 105.05(3)(k)2. 2. S = ((EW - (EV)2/4) /(EP-(EPR)2 /4))0.5.

NR 105.05(3)(k)3. 3. L = (EV - S(EPR))/4.

NR 105.05(3)(k)4. 4. A = (JR)(S) + L.

NR 105.05(3)(k)5. 5. Final Acute Intercept (FAI) = eA.

NR 105.05(3)(k)6. 6. Acute Criterion Intercept (ACI) = FAI/2.

NR 105.05(3)(L) (L) The acute toxicity equation (ATE) is written as:

ATC = e(V ln(water quality parameter) + ln ACI).

The ATE shall be applicable only over the range of water quality parameters equivalent to the mean plus or minus 2 standard deviations using the entire fresh water acute toxicity data base and the water quality parameter transformation employed in par. (a). If the value at a specific location is outside of that range, the endpoint of the range nearest to that value shall be used to determine the criterion. Additional information may be used to modify those ranges. The final acute value (FAV) equals 2 times the ATC (acute toxicity criterion) calculated using the formula in this paragraph.

NR 105.05(3)(m) (m) If, for a commercially, recreationally or ecologically important species, the SMAI is lower than the calculated ACI, then that SMAI is used as the ACI instead of the calculated one.

NR 105.05(3)(n) (n) Table 2 contains the acute toxicity criteria for the fish and aquatic life subcategories listed in s. NR 102.04 (3) that are calculated using the procedures described in this subsection for substances meeting the database requirements indicated in sub. (1) (a). Table 2A contains the water quality parameter ranges calculated in par. (L).

NR 105.05(4) (4) Secondary Acute values. If all 8 minimum data requirements for calculating acute toxicity criteria in sub. (1) (a) are not met, secondary acute values (SAVs) shall be determined using the procedure in this subsection.

NR 105.05(4)(a) (a) In order to calculate a SAV, the database shall contain, at a minimum, a genus mean acute value (GMAV) for one of the following 3 genera in the family Daphnidae - Ceriodaphnia sp., Daphnia sp., or Simocephalus sp. To calculate a SAV, the lowest GMAV in the database is divided by the Secondary Acute Factor (SAF). The SAF is an adjustment factor corresponding to the number of satisfied minimum data requirements, listed in sub. (1) (a). SAFs are listed in Table 2B.

NR 105.05(4)(b) (b) Whenever appropriate, the effects of variable water quality parameters shall be considered when calculating a SAV, consistent with the procedures described in sub. (3).