Chapter NR 111

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:

NR 111.20(1)(a) (a) Adhere to track I or track II performance standards for impingement mortality and entrainment under s. NR 111.21 (2) (a) or (b), including any more stringent measures required under s. NR 111.21 (3). Less stringent standards may be approved as specified in s. NR 111.21 (4).

NR 111.20(1)(b) (b) Submit and retain permit application and supporting information as specified in s. NR 111.40 (1).

NR 111.20(1)(c) (c) Conduct compliance monitoring as specified in s. NR 111.22.

NR 111.20(1)(d) (d) Report information and data and keep records as specified in s. NR 111.23.

NR 111.20(2) (2) The requirements specified in sub. (1) shall be implemented through a WPDES permit for each facility subject to this subchapter. Based on the information submitted in the permit application, the department shall determine the requirements and conditions to include in the permit.

NR 111.20 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.21 NR 111.21 Performance standards.

NR 111.21(1) (1) Generally. Based upon the information submitted by the owner or operator of the facility under s. NR 111.41 and on the track specified in sub. (2) (a) or (b) with which the owner or operator of the facility has chosen to comply, the department shall determine the appropriate requirements and conditions to include in the permit. At a minimum, the permit conditions shall include the applicable performance standards and requirements specified in sub. (2) (a) or (b), may include standards and requirements specified in sub. (3) and may include standards and requirements based on sub. (4) in lieu of those specified in subs. (1) to (3).

NR 111.21(2) (2) Track I or II requirements for new facilities. A owner or operator of the facility shall, except as provided in sub. (4) and subject to sub. (3), comply with one of the following:

NR 111.21(2)(a) (a) Track I requirements. All of the following for a facility choosing track I:

NR 111.21(2)(a)1. 1. If the new facility will withdraw greater than or equal to 10 MGD DIF, the total design intake flow, at a minimum, shall be reduced to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.

NR 111.21(2)(a)2. 2. Each cooling water intake structure shall be designed and constructed to a maximum design intake velocity of 0.5 feet per second.

NR 111.21(2)(a)3. 3. The cumulative DIF of all cooling water intake structures at the facility shall meet the following requirements:

NR 111.21(2)(a)3.a. a. For cooling water intake structures located in a river or stream, the total DIF shall be no greater than 5 percent of the source water annual mean flow.

NR 111.21(2)(a)3.b. b. For cooling water intake structures located in a lake or reservoir, the total DIF may not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency. In determining whether or not disruption will occur, the department shall consider anthropogenic factors unrelated to the new facility’s cooling water intake structure that can influence the occurrence and location of a thermocline, including source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow and level management practices.

NR 111.21(2)(a)4. 4. The owner or operator of the facility shall select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if any of the following occur:

NR 111.21(2)(a)4.a. a. Threatened, endangered, or otherwise protected federal, state, or tribal species or federally designated critical habitat for these species are present within the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)4.b. b. Based on information submitted by any fishery management agency or other relevant information, there are migratory, sport, or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)4.c. c. It is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements specified in subds. 1. to 3., would still contribute unacceptable stress to the protected species, federally designated critical habitat of those species, or species of concern to the department.

NR 111.21(2)(a)5. 5. The owner or operator of the facility shall select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if any of the following occur:

NR 111.21(2)(a)5.a. a. The new facility has not already reduced its design intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.

NR 111.21(2)(a)5.b. b. There are threatened, endangered, or otherwise protected federal, state, or tribal species or federally designated critical habitat for these species within the hydraulic zone of influence of the cooling water intake structure.

NR 111.21(2)(a)5.c. c. Based on information submitted by any fishery management agency or other relevant information, there are, or will be upon commencement of operation, undesirable cumulative stressors affecting entrainable life stages of species of concern to the department and the department determines that the proposed facility, after meeting the technology-based performance requirements specified in subds. 1. to 3., would contribute unacceptable stress to the protected species, federally designated critical habitat of those species, or the species of concern.

NR 111.21(2)(b) (b) Track II requirements. All of the following for a facility choosing track II:

NR 111.21(2)(b)1. 1. The owner or operator of the facility shall demonstrate to the department that the technologies employed will reduce the level of adverse environmental impact from the cooling water intake structures to a level comparable to that which would be achieved were the owner or operator of the facility to implement the requirements specified in par. (a) 1. and 2. This demonstration shall include showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those that would result if the owner or operator of the facility were to implement the requirements specified in par. (a) 1. and 2. The department shall consider information provided by any fishery management agency and may also consider data and information from other sources.

NR 111.21(2)(b)2. 2. The cumulative DIF of all cooling water intake structures at the facility shall meet the following requirements:

NR 111.21(2)(b)2.a. a. For cooling water intake structures located in a river or stream, the total DIF shall be no greater than 5 percent of the source water annual mean flow.

NR 111.21(2)(b)2.b. b. For cooling water intake structures located in a lake or reservoir, the total DIF shall not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency. In determining whether or not disruption will occur, the department shall consider anthropogenic factors unrelated to the new facility’s cooling water intake structure that can influence the occurrence and location of a thermocline, including source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow and level management practices.

NR 111.21(3) (3) More stringent standards. The owner or operator of the facility shall comply with any requirements that are more stringent than those under sub. (2) relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements at a new facility that the department deems are necessary to comply with any provision of state law including applicable water quality standards.

NR 111.21(4) (4) Alternative requirements. Upon request, alternative requirements less stringent than those specified in subs. (2) and (3) may be imposed in the permit. The department may establish alternative less stringent requirements only if all of the following are demonstrated by the person requesting the alternative requirements:

NR 111.21(4)(a) (a) There is an applicable requirement under sub. (2) or (3).

NR 111.21(4)(b) (b) The department determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs U.S. environmental protection agency considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, local water resources other than impingement or entrainment, or local energy markets.

NR 111.21(4)(c) (c) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local air quality, local water resources other than impingement or entrainment, or local energy markets.

NR 111.21(4)(d) (d) The alternative requirement will ensure compliance with other applicable provisions of the federal clean water act and any applicable requirement of state or tribal law.

NR 111.21 History History: CR 19-105: cr. Register May 2020 No. 773, eff. 6-1-20.

NR 111.22 NR 111.22 Monitoring requirements. An owner or operator of a facility to which this subchapter applies shall perform all of the following monitoring:

NR 111.22(1) (1) Biological monitoring.

NR 111.22(1)(a) (a) Impingement and entrainment monitoring. The owner or operator of the facility shall monitor both impingement and entrainment of the commercial, recreational, and forage base fish and shellfish species identified in either the source water baseline biological characterization data required under s. NR 111.41 (3) or the comprehensive demonstration study required under s. NR 111.41 (19), depending on whether the owner or operator of the facility chooses to comply with s. NR 111.21 (2) (a) or (b).

NR 111.22(1)(b) (b) Impingement and entrainment monitoring methods. The monitoring methods used shall be consistent with those used for the source water baseline biological characterization data required under s. NR 111.41 (3) or the comprehensive demonstration study required under s. NR 111.41 (19).

NR 111.22(1)(c) (c) Impingement and entrainment monitoring frequency. The owner or operator of the facility shall monitor at the frequencies identified in pars. (d) to (f) for at least two years after the initial permit issuance. After that time, the department may approve a request for less frequent sampling in the remaining years of the permit term and when the permit is reissued, if the department determines the supporting data show that less frequent monitoring would still allow for the detection of any seasonal and daily variations in the species and numbers of individuals that are impinged or entrained.

NR 111.22(1)(d) (d) Impingement sampling. The owner or operator of the facility shall collect samples to monitor impingement rates for each species over a 24-hour period and no less than once per month when the cooling water intake structure is in operation.

NR 111.22(1)(e) (e) Entrainment sampling. The owner or operator of the facility shall collect samples at least every other week to monitor entrainment rates for each species over a 24-hour period during the primary period of reproduction, larval recruitment, and peak abundance, as identified by the department. Samples shall be collected only when the cooling water intake structure is in operation.

NR 111.22(1)(f) (f) Authority to modify. The department may modify the monitoring program when the permit is reissued and during the term of the permit based on changes in physical or biological conditions in the vicinity of the cooling water intake structure. The department may require continued monitoring based on the results of the verification monitoring plan in the track II comprehensive demonstration study required under s. NR 111.41 (19) (c) 3.