Chapter NR 119

NR 119.06(3)(a)3. 3. For sites with total phosphorus concentrations that are more variable than typical or where the phosphorus concentration is close to the statewide criterion, more frequent sampling than the minimum specified in subds. 1. to 2. may be necessary to demonstrate the need for an SSC and the appropriate SSC value. A requestor may consult with the department to determine if a higher sampling frequency is necessary.

NR 119.06 Note Note: For example, if the two-sided 80% confidence interval around the proposed SSC phosphorus concentration contains the statewide criterion, then more frequent samples may be necessary to demonstrate the need for an SSC. A power analysis can be used to statistically estimate the amount of additional data needed.

NR 119.06(3)(b) (b) At least 2 years of data for each of the applicable phosphorus response indicators and biological assessment thresholds. For biological sampling, the department may approve sampling to be conducted by the requestor, conduct the sampling itself, or agree to a designee.

NR 119.06(3)(c) (c) Documentation of the monitoring protocols and quality assurance methods followed.

NR 119.06(3)(d) (d) Depending on site-specific circumstances, for the purposes of making an SSC determination, the department may require an additional number of samples, monitoring sites, or other chemical, biological, or physical metrics in addition to those specified in this section.

NR 119.06 Note Note: The department’s monitoring protocols and standard operating procedures, including quality assurance protocols, and existing data housed by the department may be accessed through the department’s SWIMS database. Contact the department at [e-mail] for access to the database. More information is available by contacting the department’s surface water monitoring section or on its surface water monitoring website at
https://dnr.wi.gov/topic/SurfaceWater/monitoring.html.

NR 119.06(4) (4) Analysis. The submittal shall contain an analysis of the data, including all of the following:

NR 119.06(4)(a) (a) An analysis of monitoring data following the department’s assessment protocols to indicate current and historic attainment status of all water quality standards, phosphorus response indicators, and biological assessment thresholds identified in sub. (2). This shall include identifying whether any waters are or have been on the section 303(d) list, and any trends observable over time. If any relevant water quality standard is not attained, evaluate whether there is a relationship between phosphorus and the non-attainment, and any other potential factors that may be causing the non-attainment.

NR 119.06 Note Note: The department’s surface water assessment protocols are found under specific metrics within chs. NR 102 and 105 and in guidance titled “Wisconsin Consolidated Assessment and Listing Methodology,” or WisCALM, which is available on the department’s surface water assessments website at
https://dnr.wi.gov/topic/SurfaceWater/assessments.html.

NR 119.06(4)(b) (b) A statistical or modeling analysis if needed to determine the appropriate SSC, as specified in s. NR 119.05 (2), and documentation of methods and results. The analysis shall demonstrate a clear link between phosphorus and attainment of a designated use, including characterization of the relationship between phosphorus and the applicable phosphorus response indicators. The analysis shall be based on or calibrated to data from the waterbody that are representative of the range of environmental variability that may influence the applicable phosphorus response indicators. For rivers that contain a reservoir, impounded flowing water, or natural drainage lake, the model may be based on attainment of the applicable phosphorus response indicators for frequency of moderate algae levels and chlorophyll a specified in s. NR 102.60 (2) (a) to (b). In those cases, a model demonstrating attainment of the river phosphorus response indicator for chlorophyll a specified in s. NR 102.60 (3) is not required. For rivers without a reservoir, impounded flowing water, or natural drainage lake, modeling shall include a demonstration that the river phosphorus response indicator for chlorophyll a specified in s. NR 102.60 (3) is expected to be attained.

NR 119.06 Note Note: The option for rivers with impounded flowing waters, reservoirs, or natural drainage lakes is provided because modeling chlorophyll a – phosphorus correlations is more cost-effective for these waters than modeling such correlations in rivers, and attaining the chlorophyll a targets for lakes, reservoirs, and impounded flowing waters should ensure that chlorophyll a targets are also met within the river.

NR 119.06(5) (5) Proposed SSC extent. The submittal shall contain identification of the extent of the study area that may be eligible for the SSC. For a less stringent SSC, this may include any segments within the study area that do not attain their applicable phosphorus criteria but do attain all phosphorus response indicators and biological assessment thresholds. For a more stringent SSC, this may include any segments that are demonstrated to need a more stringent phosphorus criterion to protect designated uses.

NR 119.06 Note Note: Typically, monitoring and analysis under subs. (3) to (4) will need to be completed before the extent of the study area eligible for the SSC can be identified.

NR 119.06(6) (6) Downstream protection. For less stringent SSC, the submittal shall contain a demonstration that potentially affected downstream waters’ uses are protected by the proposed SSC, using one of the following methods:

NR 119.06(6)(a) (a) Waters in the study area under sub. (1) that are downstream of the extent of the study area that may be eligible for the SSC as determined under sub. (5) shall be assessed as follows:

NR 119.06(6)(a)1. 1. If the downstream segment adjacent to the proposed SSC extent attains its applicable phosphorus criteria, phosphorus response indicators, and biological assessment thresholds, the SSC is protective of downstream waters.

NR 119.06(6)(a)2. 2. If the proposed SSC extent directly joins a river listed in s. NR 102.06 (3) that is not attaining one or more of its phosphorus response indicators or biological assessment thresholds, an SSC may be established but shall not be set higher than either the phosphorus criterion of the river or the ambient total phosphorus concentration of the SSC extent.

NR 119.06 Note Note: Under this paragraph, Strahler stream order should be used to determine the length of the adjacent downstream segment.

NR 119.06(6)(b) (b) If a demonstration for downstream protection under par. (a) is not appropriate or feasible, an alternative demonstration of downstream protection may be submitted by the requestor to the department.

NR 119.06(7) (7) Proposed SSC and supporting materials. The submittal shall contain the proposed SSC and materials supporting the proposal, including all of the following:

NR 119.06(7)(a) (a) Determination of the SSC that would be appropriately protective of designated uses in the waterbody and downstream, based on the analyses in this section.

NR 119.06(7)(b) (b) Demonstration that there is a statistically significant difference between the proposed SSC and the statewide phosphorus criterion, based on estimation of the uncertainty in the relationships developed under sub. (4) (b).

NR 119.06 Note Note: For example, an SSC may be demonstrated to be significantly different from the statewide criterion if the statewide phosphorus criterion is outside the 2-sided 80% confidence interval around the proposed phosphorus SSC concentration.

NR 119.06(7)(c) (c) A draft technical support document that contains the information required in this chapter to support the SSC and meets the requirements specified in s. 281.15, Stats. All raw data and calculations shall also be submitted to the department.

NR 119.06 Note Note: Section 281.15 (2) (b) to (e), Stats., requires information on socioeconomic costs and considerations, a demonstration that the criterion is no more stringent than reasonably necessary to assure attainment of a waterbody’s designated uses, application of reasonable statistical techniques, and a technical support document detailing methods used to develop the criterion.

NR 119.06 Note Note: The department recommends that requestors meet with the department early in the process to determine additional data needs and protocols before developing a monitoring or modeling plan or submitting an SSC request. The department may provide technical assistance as resources allow. Any preliminary advice provided by the department is not binding, but is meant to inform the requestor’s decision on whether to develop an SSC and the information needed to do so.

NR 119.06 History History: CR 19-093: cr. Register September 2022 No. 801, eff. 10-1-22.

NR 119.07 NR 119.07 Decision regarding SSC request.

NR 119.07(1) (1) The department shall review an SSC request and make a determination on whether the SSC is approvable.

NR 119.07(2) (2) The department may initiate rulemaking under subch. II of ch. 227, Stats., if, after reviewing the submittal, it determines that the proposed SSC is approvable under s. 281.15, Stats. The department shall notify the requestor of its determination. Promulgation of an SSC is a revision to a water quality standard and it requires U.S. EPA approval under 40 CFR 131.20 and 131.21.

NR 119.07 Note Note: An SSC can only be used as the basis for a TMDL after it has been approved by U.S. EPA and taken effect.

NR 119.07(3) (3) If the department determines that a proposed SSC is not approvable under s. 281.15, Stats., s. NR 102.06 (7), and this chapter, then it shall notify the SSC requestor in writing and provide an explanation of the reason for the denial. If a request for an SSC is denied, the requestor may choose to submit additional data or analysis or submit a petition for rulemaking to the department pursuant to the procedures specified in ss. NR 2.03 and 2.05 and s. 227.12, Stats.

NR 119.07 Note Note: If the department chooses not to initiate rulemaking under this section, a petition for rulemaking may be submitted to the department pursuant to s. 227.12, Stats. A petition for rulemaking under s. 227.12 (1), Stats., may be submitted by a municipality, an association which is representative of a farm, labor, business or professional group, or any 5 or more persons having an interest in the rule. If a s. 227.12, Stats., petition is denied by the department, the petitioners may seek review of the decision under ch. 227, Stats. In addition, a person may request that U.S. EPA promulgate an SSC under 40 CFR 131.22 (b).

NR 119.07 Note Note: To be notified of rulemaking related to water quality standards and assessments, including SSC, the public may subscribe to the water quality standards and assessments electronic notification system on the department’s home page at http://dnr.wi.gov/. Requests to be placed on the WPDES permit public notification list may be directed to the Department of Natural Resources, WPDES Permits, P.O. Box 7921, Madison, Wisconsin 53707-7921. Notifications to the mailing list will be sent electronically unless the requestor specifies a preference for a mailed copy.

NR 119.07(4) (4) Any promulgated SSC may later be revised through rulemaking.

NR 119.07 History History: CR 19-093: cr. Register September 2022 No. 801, eff. 10-1-22; correction in (2) made under s. 35.17, Stats., Register September 2022 No. 801.