Chapter NR 111

NR 111.11(2)(a) (a) Reissuance of permits that expired after July 14, 2018 and permits that expired on or prior to July 14, 2018 that did not receive an alternate schedule. In the case of reissuance of any permit that expired after July 14, 2018 and in the case of reissuance of any permits expiring on or prior to July 14, 2018, that did not receive an alternate schedule under sub. (1) (b), the department shall include in the reissued permit, at a minimum, conditions to implement and ensure compliance with the impingement mortality standard specified in s. NR 111.12 and the entrainment standard specified in s. NR 111.13, including any measures to protect threatened and endangered species and federally designated critical habitat required by the department. In addition, the department shall include in the permit conditions, management practices, and operational measures necessary to ensure proper operation of any technology used to comply with these standards.

NR 111.11(2)(b) (b) Permits receiving an alternate schedule. In the case of any permit for which the department, under sub. (1) (b), has established an alternate schedule for submission of the information required under subch. V, the department may include permit conditions to ensure that, for any subsequent permit, the department has all the information required under subch. V necessary to establish impingement mortality and entrainment BTA requirements under ss. NR 111.12 and 111.13. In addition, the department shall establish interim BTA requirements in the permit based on the department’s best professional judgment on a site-specific basis.

NR 111.11(2)(c) (c) Permits issued after October 14, 2014 and applied for before October 14, 2014.

NR 111.11(2)(c)1. 1. In the case of any permit issued after October 14, 2014, and applied for before October 14, 2014, the department may include permit conditions to ensure that the department has all the information under subch. V necessary to establish impingement mortality and entrainment BTA requirements under ss. NR 111.12 and 111.13 for the subsequent permit. The department shall establish interim BTA requirements in the permit on a site-specific basis based on the department’s best professional judgment.

NR 111.11(2)(c)2. 2. In the case of permit proceedings that have begun prior to October 14, 2014, whenever the department has determined that the information already submitted by the owner or operator of the facility is sufficient, the department may proceed with a determination of BTA standards for impingement mortality and entrainment without requiring the owner or operator of the facility to submit the information required under subch. V. The department’s BTA determination may be based on some or all of the factors specified in s. NR 111.13 (2) and (3) and the BTA standards for impingement mortality specified in s. NR 111.12. In making the decision on whether to require additional information from the applicant, and what BTA requirements to include in the applicant’s permit for impingement mortality and site-specific entrainment, the department shall consider whether any of the information under subch. V is necessary.

NR 111.11(3) (3) Permit schedules for compliance.

NR 111.11(3)(a) (a) Generally. After issuance of a final permit establishing the entrainment requirements under s. NR 111.13, the owner or operator of an existing facility shall comply with the impingement mortality and entrainment standards as soon as practicable, based on a schedule of requirements established by the department. The department may establish interim compliance milestones in the permit.

NR 111.11(3)(b) (b) Electric power generating facilities. When establishing a schedule under par. (a) for an electric generating facility, the department may consider measures to maintain adequate energy reliability and necessary grid reserve capacity during any facility outage. These may include establishing a staggered schedule for multiple facilities serving the same localities. The department may confer with independent system operators and state public utility regulatory agencies when establishing a schedule for electric power generating facilities.

NR 111.11(3)(c) (c) Manufacturing facilities. The department may consider extenuating circumstances, such as lengthy scheduled shutdowns or future production schedules, in establishing a compliance schedule under par. (a) for any manufacturing facility.

NR 111.11 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20; correction in (1) (b), (2) (a), (c) 1. made under s. 35.17, Stats., Register May 2020 No. 773.

NR 111.12 NR 111.12 Impingement mortality BTA standards.

NR 111.12(1) (1) Mandatory requirements.

NR 111.12(1)(a) (a) Generally. Except when approved by the department as provided in par. (b) and subs. (3) and (4), the owner or operator of an existing facility shall comply with one of the following alternatives, subject to the additional requirements specified in sub. (2) or s. NR 111.16 (1) if the department requires such additional measures:

NR 111.12(1)(a)1. 1. ‘Closed cycle recirculating system.’ Operate a closed-cycle recirculating system as defined in s. NR 111.03 (5). In addition, the owner or operator of a facility shall monitor the actual intake flows at a minimum frequency of daily. The monitoring shall be representative of normal operating conditions and shall include measuring cooling water withdrawals, make-up water, and blowdown volume. In lieu of daily intake flow monitoring, the owner or operator of a facility may monitor cycles of concentration at a minimum frequency of daily.

NR 111.12(1)(a)2. 2. ‘0.5 Feet per second maximum design intake velocity.’ Operate a cooling water intake structure that has a maximum design intake velocity less than or equal to 0.5 feet per second. The owner or operator of the facility shall submit information to the department that demonstrates that the maximum design intake velocity does not exceed 0.5 feet per second. The maximum velocity shall be achieved under all conditions, including during source water surface elevations associated with Q7,10 flows and during periods of maximum head loss across the screens or other devices during normal operation of the intake structure. The maximum design intake velocity shall be calculated using the method specified in s. NR 111.03 (26).

NR 111.12(1)(a)3. 3. ‘0.5 Feet per second actual intake velocity.’ Operate a cooling water intake structure that has a maximum intake velocity less than or equal to 0.5 feet per second. The owner or operator of the facility shall submit information to the department that demonstrates that the maximum actual intake velocity does not exceed 0.5 feet per second at the point with the smallest open area between the point at which water is withdrawn from a water of the state and the first screen. The maximum velocity shall be achieved under all conditions, including during source water surface elevations associated with Q7,10 flows and during periods of maximum head loss across the screens or other devices during normal operation of the intake structure. The department may authorize the owner or operator of the facility to exceed the 0.5 feet per second velocity at an intake for brief periods for the purpose of maintaining the cooling water intake system, such as backwashing the screen face. In addition, the owner or operator of the facility shall monitor the velocity at the intake continuously and report any exceedances of 0.5 feet per second. In lieu of velocity monitoring at the intake, the owner or operator of the facility may calculate the actual intake velocity as follows:

where:

V = the actual intake velocity.

Q = the actual intake flow rate based on monitoring.

A = wetted area of the screen at the given water depth.

P = screen open area percentage divided by 100.

NR 111.12(1)(a)4. 4. ‘Existing offshore velocity cap.’ Operate an existing offshore velocity cap that was installed on or before October 14, 2014. Offshore velocity caps installed after October 14, 2014 shall make either a demonstration under subd. 6. or meet the performance standard under subd. 7. In addition, the facility shall monitor total daily intake flow.

NR 111.12(1)(a)5. 5. ‘Modified traveling screens.’ Operate a modified traveling screen that the department determines meets the definition specified in s. NR 111.03 (29) and that, after review of the information required in the impingement technology performance optimization study specified in s. NR 111.41 (5), the department determines is the BTA for impingement reduction at the site. As the basis for the department’s determination, the owner or operator of the facility shall demonstrate that the technology is or will be optimized to minimize impingement mortality of all species except those designated as fragile or nuisance. The permit shall include verifiable and enforceable permit conditions that ensure the technology will perform as demonstrated.

NR 111.12(1)(a)6. 6. ‘Systems of technologies as the BTA for impingement mortality.’ Operate a system of technologies, management practices, and operational measures that, after review of the information required in the impingement technology performance optimization study specified in s. NR 111.41 (5), the department determines is the BTA for impingement reduction at the facility’s cooling water intake structure. As the basis for the department’s determination, the owner or operator of the facility shall demonstrate that the system of technologies has been optimized to minimize impingement mortality of all species except those designated as fragile or nuisance. In addition, the department’s decision will be informed by comparing the impingement mortality performance data under s. NR 111.41 (5) to a performance standard of no more than 24 percent impingement mortality, including latent mortality and excluding fragile and nuisance species. The permit shall include verifiable and enforceable permit conditions that ensure the system of technologies will perform as demonstrated.

NR 111.12(1)(a)7. 7. ‘Impingement mortality performance standard.’ Achieve a 12-month impingement mortality performance standard of all life stages of fish and shellfish of no more than 24 percent mortality, including latent mortality, for all species together, except those designated as fragile or nuisance, that are collected or retained in a sieve with maximum opening dimension of 0.56 inches and kept for a holding period of 18 to 96 hours. The department may prescribe an alternative holding period. The facility shall conduct biological monitoring at a minimum frequency of monthly to demonstrate its impingement mortality performance. Each month, the facility shall use all of the monitoring data collected during the previous 12 months to calculate the 12-month survival percentage. The 12-month impingement mortality survival performance standard is the total number of fish killed divided by the total number of fish impinged over the course of the entire 12 months. The owner or operator of the facility shall choose whether to demonstrate compliance with this requirement for the entire facility, or for each individual cooling water intake structure for which this subdivision is the selected impingement mortality requirement.

NR 111.12(1)(b) (b) Exceptions.

NR 111.12(1)(b)1. 1. ‘De minimis rate of impingement.’ In limited circumstances, rates of impingement may be so low at a facility that additional impingement controls may not be justified. The department, based on review of site-specific data submitted under subch. V, may conclude that the documented rate of impingement at the cooling water intake is so low that no additional controls are warranted. Notice of a determination that no additional impingement controls are warranted shall be included in the draft or proposed permit and the department’s response to all comments on this determination shall be included in the record for the final permit.

NR 111.12(1)(b)2. 2. ‘Low capacity utilization power generating units.’ If an existing facility has a cooling water intake structure used for one or more existing electric generating units, each with an annual average capacity utilization rate of less than 8 percent averaged over a 24-month contiguous period, the department may, based on review of site-specific data concerning cooling water system data under s. NR 111.41 (4), establish the BTA standards for impingement mortality for that cooling water intake structure that are less stringent than par. (a) 1. to 7.

NR 111.12(1)(c) (c) Reuse of other water for cooling purposes. The impingement mortality standard under this section does not apply to the portion of cooling water that is process water, gray water, reclaimed water, or other waters reused as cooling water in lieu of water obtained by surface water intakes.

NR 111.12(2) (2) Additional measures for other species. The department may require the owner or operator of the facility to comply with additional monitoring, technologies, or measures, such as seasonal deployment of barrier nets, to protect shellfish or fragile species.

NR 111.12(3) (3) Best professional judgment-based BTA requirements. The owner or operator of the facility may be subject to interim, best professional judgment-based BTA requirements established by the department in the permit on a site-specific basis if an alternative schedule is granted under s. NR 111.11 (2) (b) or if a complete permit application was received by the department before October 14, 2014.

NR 111.12(4) (4) Nuclear facilities. If the owner or operator of a nuclear facility demonstrates to the department, upon the department’s consultation with the U.S. nuclear regulatory commission, the U.S. department of energy, or the naval nuclear propulsion program, that compliance with this subchapter would result in a conflict with a safety requirement established by the U.S. nuclear regulatory commission, U.S. department of energy, or naval nuclear propulsion program, the department shall make a site-specific determination of BTA for minimizing adverse environmental impact that would not result in a conflict with the safety requirement of the U.S. nuclear regulatory commission, U.S. department of energy, or naval nuclear propulsion program.

NR 111.12 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20; correction in (1) (a) 5., 7. made under s. 35.17, Stats., Register May 2020 No. 773.

NR 111.13 NR 111.13 Entrainment BTA standards. The department shall establish BTA standards for entrainment for each intake on a site-specific basis. These standards shall reflect the department’s determination of the maximum reduction in entrainment warranted after consideration of the relevant factors as specified in subs. (2) and (3). The department may also require periodic reporting on a facility’s progress toward installation and operation of site-specific entrainment controls. These reports may include updates on planning, design, and construction or other appropriate topics as required by the department. If the department determines that the site-specific BTA standard for entrainment under this section requires performance equivalent to a closed-cycle recirculating system as defined in s. NR 111.03 (5), then the facility in question shall comply with the impingement mortality standard under s. NR 111.12 (1) (a) 1. for that intake. The department shall follow all of the following steps to establish BTA standards for entrainment:

NR 111.13(1) (1) The department shall provide a written explanation of the proposed entrainment determination in the fact sheet for the proposed permit. The written explanation shall describe why the department has rejected any entrainment control technologies or measures that perform better than the selected technologies or measures and shall reflect consideration of all reasonable attempts to mitigate any adverse impacts of otherwise available better performing entrainment technologies.

NR 111.13(2) (2) 

NR 111.13(2)(a) (a) The department’s BTA determination shall be based on consideration of all of the following factors, plus any additional information required by the department, such as that listed in sub. (3):

NR 111.13(2)(a)1. 1. Numbers and types of organisms entrained, including, specifically, the numbers and species, or lowest taxonomic classification possible, of threatened and endangered species and federally designated critical habitat, for example, prey base.

NR 111.13(2)(a)2. 2. Impact of changes in particulate emissions or other pollutants associated with entrainment technologies.

NR 111.13(2)(a)3. 3. Land availability as it relates to the feasibility of entrainment technology.

NR 111.13(2)(a)4. 4. Remaining useful plant life.

NR 111.13(2)(a)5. 5. Quantified and qualitative social benefits and costs of available entrainment technologies when information on both benefits and costs is of sufficient rigor to make a decision.

NR 111.13(2)(b) (b) The weight given to each factor under par. (a) is within the department’s discretion based upon the circumstances of each facility.

NR 111.13(3) (3) The department’s proposed BTA determination may be based on consideration of any of the following factors to the extent the applicant submitted information under subch. V:

NR 111.13(3)(a) (a) Entrainment impacts on the waterbody.

NR 111.13(3)(b) (b) Thermal discharge impacts.

NR 111.13(3)(c) (c) Credit for reductions in flow associated with the retirement of units occurring within 10 years preceding October 14, 2014.

NR 111.13(3)(d) (d) Impacts on the reliability of energy delivery within the immediate area.

NR 111.13(3)(e) (e) Impacts on water consumption.

NR 111.13(3)(f) (f) Availability of process water, gray water, wastewater, reclaimed water, or other waters of appropriate quantity and quality for reuse as cooling water.

NR 111.13(4) (4) If all technologies considered have social costs not justified by the social benefits, or have unacceptable adverse impacts that cannot be mitigated, the department may determine that no additional control requirements are necessary beyond those already in use at the facility. The department may reject an otherwise available technology as a BTA standard for entrainment if the social costs are not justified by the social benefits.

NR 111.13(5) (5) Prior to any permit reissuance after July 14, 2018, the department shall review the performance of the facility’s installed entrainment technology to determine whether it continues to meet the requirements of this section.

NR 111.13 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.14 NR 111.14 Monitoring requirements. At a minimum, the WPDES permit for a facility subject to this subchapter shall require the permittee to monitor, as required in ss. NR 111.12, and 111.13, according to all of the following:

NR 111.14(1) (1) Monitoring requirements for impingement mortality. The department may establish monitoring requirements to quantify impingement mortality in addition to those specified in s. NR 111.12, including biological monitoring, intake velocity, and flow measurements. If the department establishes additional monitoring requirements, the specific protocols shall be determined by the department.

NR 111.14(2) (2) Monitoring requirements for entrainment. The department shall determine monitoring requirements for entrainment on a site-specific basis, as appropriate, to meet requirements under s. NR 111.13. The department may establish entrainment monitoring requirements in addition to those specified in s. NR 111.13.

NR 111.14(3) (3) Flow rate monitoring. The owner or operator of the facility shall monitor the total volume of water withdrawn and the percent used for cooling on a daily basis. Additionally, if applicable, make-up water and blowdown daily flow rates shall be monitored. Alternatively, an owner or operator of the facility complying with s. NR 111.12 (1) (a) 1. may monitor cycles of cooling in lieu of flow monitoring. Also alternatively, an owner or operator of the facility may report percent of flow used for cooling on a less frequent basis if daily monitoring is infeasible or overly burdensome and if the department approves an alternate method of estimating this value. The department may require additional monitoring as necessary to demonstrate compliance with s. NR 111.21.

NR 111.14(4) (4) Visual or remote inspections. The owner or operator of a facility shall conduct either visual inspections or employ remote monitoring devices during the period the cooling water intake structure is in operation. The owner or operator of a facility shall conduct inspections at least weekly to ensure that any technologies operated to comply with ss. NR 111.12, 111.13, and 111.16 are maintained and operated to function as designed. The department may establish alternative procedures if this requirement is not feasible, such as in the cases of offshore intakes, velocity caps, intakes inside dams, or monitoring during periods of inclement weather.

NR 111.14(5) (5) Request for reduced monitoring. For a facility that is subject to s. NR 111.12 (1) (a) 7. and where the facility’s cooling water intake structure does not directly or indirectly affect threatened or endangered species or federally designated critical habitat, the owner or operator of the facility may request that the department reduce monitoring requirements after the first full permit term in which these monitoring requirements are implemented, on the condition that the results of the monitoring to date demonstrate that the owner or operator of the facility has consistently operated the intake as designed and is meeting the requirements specified in s. NR 111.12.

NR 111.14(6) (6) Additional monitoring requirements. The owner or operator of the facility shall comply with any additional monitoring for impingement or entrainment at the cooling water intake structure, including any of the following:

NR 111.14(6)(a) (a) The department may require additional monitoring if there are changes in operating conditions at the facility or in the source waterbody that warrant a re-examination of the operational conditions specified in s. NR 111.41 (7).

NR 111.14(6)(b) (b) The department may require additional monitoring for species not subject to the BTA requirements for impingement mortality under s. NR 111.12. Such monitoring requirements shall be determined by the department on a site-specific basis.

NR 111.14(7) (7) Additional monitoring related to threatened and endangered species and federally designated critical habitat. When the department requires additional measures to protect federal threatened or endangered species or federally designated critical habitat under s. NR 111.16, the department shall require monitoring associated with those measures.

NR 111.14 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20; correction in (4) made under s. 35.17, Stats., Register May 2020.

NR 111.15 NR 111.15 Recordkeeping and reporting requirements. The owner or operator of an existing facility subject to this subchapter is subject to all of the following requirements:

NR 111.15(1) (1) Reporting requirements. The owner or operator shall submit to the department all of the following information:

NR 111.15(1)(a) (a) Monitoring reports. Discharge monitoring reports and results of all monitoring, demonstrations, and other information required by the permit sufficient to determine compliance with the permit conditions and requirements established under ss. NR 111.12 to 111.14.

NR 111.15(1)(b) (b) Status reports. Any reports required under ss. NR 111.12 to 111.14.

NR 111.15(1)(c) (c) Annual certification statement and report. An annual certification statement signed in accordance with s. NR 205.07 (1) (g) subject to the following:

NR 111.15(1)(c)1. 1. If the information contained in the previous year’s annual certification is still pertinent, the owner or operator of a facility may state this in a letter to the department. The letter, along with compliance with any applicable data submission requirements specified in this section, shall constitute the annual certification.

NR 111.15(1)(c)2. 2. If the facility has substantially modified operation of any unit that impacts cooling water withdrawals or operation of the cooling water intake structures, the owner or operator of a facility shall provide a summary of those changes in the report. In addition, the owner or operator of a facility shall submit revisions to the information required under subch. V in the next permit application.

NR 111.15(1)(d) (d) Reporting. Any additional reporting required by the department. Additional reporting may be required when necessary to establish permit compliance, including the records required under sub. (2), and may provide for periodic inspection of the facility.

NR 111.15(1)(e) (e) Additional reporting requirements related to federal threatened and endangered species or federally designated critical habitat. Additional reporting associated with measures to protect federally threatened or endangered species and critical habitat, in situations when the department requires such measures under s. NR 111.16. The department shall submit these reports at least annually to the U.S. environmental protection agency region 5 office for compilation and transmittal to the U.S. fish and wildlife service.

NR 111.15(2) (2) Records retention. The owner or operator of a facility shall retain records of all submissions that are part of the permit reporting requirements under this section until the subsequent permit is issued. In addition, the department may require supplemental recordkeeping, such as for compliance monitoring under s. NR 111.14 or supplemental data collection under subch. V.

NR 111.15 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.16 NR 111.16 Protection of threatened and endangered species and fragile species.

NR 111.16(1) (1) Protection of threatened and endangered species and federally designated critical habitat. A WPDES permit for a facility subject to this chapter may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to threatened and endangered species and federally designated critical habitat, or avoid jeopardizing threatened and endangered species or destroying or adversely modifying federally designated critical habitat, for example prey base. The control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. fish and wildlife service during the 60-day review period under sub. (3) or the public notice and comment period. When established in the permit by the department, the owner or operator shall implement any such requirements. The department may include the additional permit requirements if at least one of the following applies:

NR 111.16(1)(a) (a) Based on information submitted to the department by any fishery management agency or other relevant information, there are migratory, sport, or commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure.

NR 111.16(1)(b) (b) It is determined by the department, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to listed and proposed threatened and endangered species, and federally designated and proposed critical habitat.

NR 111.16(2) (2) Supplemental technologies and monitoring. The department may require additional technologies for protection of fragile species and may require additional monitoring of species of fish and shellfish not already required under s. NR 111.42 (1). The department may consider data submitted by other interested parties. The department may also require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.

NR 111.16(3) (3) U.S. fish and wildlife service review. The department shall transmit all permit applications for facilities subject to this subchapter to the appropriate field office of the U.S. fish and wildlife service upon receipt for a 60-day review prior to public notice of the draft or proposed permit. The department shall provide the public notice and an opportunity to comment as required under s. 283.39, Stats., and shall submit a copy of the fact sheet, the permit application, and the draft permit to the appropriate field office of the U.S. fish and wildlife service. This includes notice of specific cooling water intake structure requirements, notice of the draft permit, and any specific information the department has about federal threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for the species and habitat.

NR 111.16(4) (4) Take disclaimer.

NR 111.16(4)(a) (a) Nothing in this chapter authorizes take, as defined in 16 USC 1532 (19) and s. 29.604, Stats., of federally or state listed threatened or endangered species of fish or wildlife. Such take is prohibited under the federal endangered species act unless it is exempted under 16 USC 1536 (o) or permitted under 16 USC 1539 (a) and is prohibited under s. 29.604, Stats., unless it is permitted or authorized under s. 29.604 (6m) or (6r), Stats. Absent an exemption, authorization, or permit, any facility operating under the authority of this chapter may not take threatened or endangered wildlife.

NR 111.16(4)(b) (b) Permits for facilities with cooling water intake structures shall include the following language as a permit condition: “Nothing in this permit authorizes take for the purposes of a facility’s compliance with the Endangered Species Act or with Wisconsin’s endangered species law.”

NR 111.16 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

subch. III of ch. NR 111 Subchapter III — New Facilities

NR 111.20 NR 111.20 Requirement to comply with performance standards.

NR 111.20(1) (1) The owner or operator of a new facility that meets the applicability criteria under s. NR 111.02 shall comply with all of the following: