ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to amend NR 102.01 (1) and 102.06 (7); and to create NR 119 relating to the development of site-specific numeric phosphorus water quality criteria for surface waters. |
WT-17-12
Analysis Prepared by the Department of Natural Resources
1-3. Statutory Authority, Statutes Interpreted, and Explanation of Agency Authority:
Section 281.15, Stats., provides the authority for the Department of Natural Resources to promulgate by rule water quality standards for surface waters or portions of surface waters in the state. Pursuant to s. 281.15, Stats., water quality standards are comprised of designated uses and criteria. The department has promulgated designated uses and criteria for various pollutants and parameters in chs. NR 102 through 105, Wis. Adm. Code. The criteria for phosphorus that were approved by the U.S. Environmental Protection Agency (U.S. EPA) are promulgated in s. NR 102.06, Wis. Adm. Code. In s. NR 102.06(7), Wis. Adm. Code, the department recognized that it may be appropriate to promulgate site-specific criteria (SSC) for phosphorus for some surface water segments. These proposed rules will establish detailed procedures and a methodology for developing phosphorus SSC for a waterbody or portion thereof under s. 281.15, Stats. The proposed rules will also ensure that the requirements in s. 281.15, Stats., are met in specific waterbodies or segments. They will help ensure that criteria protect a waterbody’s designated uses but are no more stringent than reasonably necessary to assure attainment of those uses under s. 281.15, Stats. 4. Related Statutes or Rules: Wisconsin’s statewide phosphorus criteria are established in s. NR 102.06, Wis. Adm. Code. As described above, s. NR 102.06(7), Wis. Adm. Code, recognizes that site-specific phosphorus criteria may be necessary for certain waterbodies. However, this section does not contain an explanation of how such SSC are to be developed. These proposed rules establish detailed methodology for developing phosphorus SSC. The proposed rules also reference another rule package currently in progress. Rule package WY-23-13 creates phosphorus response indicators and biological assessment thresholds under a new subchapter III in ch. NR 102. Eligibility for an SSC in this proposed rule package is in part dependent on whether a waterbody is attaining its phosphorus response indicators and biological assessment thresholds, and an SSC must be set at a concentration that will support both. Because these rule packages work in tandem and cross-reference one another, they are moving simultaneously through the rulemaking process. In 2020, phosphorus SSC were promulgated for three specific waterbodies within the Wisconsin River Basin under s. NR 102.06(7)(b). Currently, a separate rule package (WY-21-20) is underway to propose a phosphorus SSC for Lac Courte Oreilles in Sawyer County. 5. Plain Language Analysis: The existing policy for deriving phosphorus SSC is found in s. NR 102.06(7), Wis. Adm. Code, which recognizes that the department can promulgate by rule phosphorus site-specific criteria. The proposed rule, ch. NR 119, Wis. Adm. Code, is not a change from past policy, but rather establishes a methodology and process for establishing SSC. SSC may be appropriate when the statewide phosphorus criteria are either over- or under-protective of Wisconsin’s waters in a given water segment. The existing statewide phosphorus criteria are sufficiently protective in most cases. However, there are instances where the applicable phosphorus criteria under s. NR 102.06, Wis. Adm. Code, need to be adjusted to ensure that the applicable designated uses (such as recreation and aquatic life) are being reasonably protected. If designated uses are not being supported by the statewide criterion, a more stringent SSC may be necessary. In cases where a statewide criterion is more stringent than reasonably necessary to protect the designated uses of the waterbody, a less stringent SSC would likely be warranted. Deriving SSC for these waters may alter WPDES permit limits for point source discharges at or upstream of these specific surface water segments. This rule specifies the scientifically defensible methods required to derive phosphorus SSC. This rule also identifies the process department staff and interested parties should follow to derive phosphorus SSC. If this rulemaking were not completed, an SSC could still be developed by rule for phosphorus. However, expectations would not be clearly defined, which may result in inconsistencies and added complexity for those developing SSC.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The Federal water quality standards regulation at 40 CFR 131.11(b)(1)(ii) provides states with the opportunity to adopt water quality criteria that are “modified to reflect site-specific conditions.” Wisconsin has used this authority, as well as the authority under s. 281.15, Stats., to promulgate the existing narrative phosphorus site-specific criteria language in s. NR 102.06(7), Wis. Adm. Code. The portions of 40 CFR 131 related to establishing water quality standards include: - 40 CFR 131 Subparts A-C: Requirements for establishing state water quality standards. - 40 CFR 131.4: States are responsible for establishing and revising water quality standards. U.S. EPA approves or disapproves standards under 40 CFR s. 131.5. - 40 CFR 131.6: Water quality standards consist of designated uses and criteria to protect the designated uses. - 40 CFR 131.11: States must adopt water quality criteria that protect designated uses. For waters with multiple uses, the criteria must protect the most sensitive use. 40 CFR 131.11(b)(1)(ii) authorizes states to adopt numeric water quality criteria that are “modified to reflect site-specific conditions.” - 40 CFR 131.20: Revision of state water quality standards is subject to public participation procedures and U.S. EPA review and approval under 40 CFR 131.20. Wisconsin has authority under s. 281.15, Stats., to promulgate and revise water quality standards. Promulgation of site-specific criteria methodology would provide consistency with the federal regulations in 40 CFR 131.6 and 131.11 that require that criteria be based on protecting the designated uses of a waterbody. 7. Comparison with Similar Rules in Adjacent States: Iowa, Indiana, Michigan and Ohio do not have statewide numeric phosphorus criteria. However, Michigan widely applies a method to derive appropriate site-specific phosphorus targets for waterbodies in the state. Ohio has a longstanding approach for developing site-specific phosphorus targets using a weight of evidence approach based on several eutrophication indicators. The targets set by Michigan and Ohio are applied in TMDLs and permits.
Illinois has adopted partial phosphorus criteria for lakes and reservoirs. Illinois does not have provisions for site-specific criteria.
Minnesota has adopted phosphorus criteria for lakes, reservoirs, rivers and streams. Minnesota allows specific water quality standards, referred to as SSC in Wisconsin, to be adopted when appropriate if information is available to derive standards based on a waterbody’s specific characteristics. This process is outlined in Minn. R. 7050.0220 and 7050.0222. Site-specific standards must maintain and protect a waterbody’s beneficial uses. Several site-specific phosphorus criteria have been approved in Minnesota.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: This rule is largely procedural in nature. The department worked with U.S. EPA, department water quality standards staff and attorneys, and an external stakeholder committee to determine the type of information and data necessary to develop an SSC that would be approvable under state and federal regulations and the protocols contained in these rules for submittal of this information.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: Because this rule simply clarifies and documents a process for conducting a review already expressly allowed by state statutes and recognized in existing code, the creation of this rule is not expected to incur costs. The processes outlined in this rule are similar to those that the department has followed under the existing rule, s. NR 102.06(7), Wis. Adm. Code, and s. 281.15, Stats. The department recognizes that during the SSC development process, a person requesting an SSC is likely to incur some costs for monitoring or modeling, but it is their choice whether to request an SSC and incur those costs. Also, by specifying the type of demonstration that needs to be made to support an SSC, the rule may save requestors costs and time by streamlining their study design and reducing the time needed for SSC approval. Once an SSC is developed for a waterbody, there may be alterations to WPDES (Wisconsin Pollutant Discharge Elimination System) permit limits for point source discharges at, or upstream of, these specific surface water segments which may result in increased or decreased compliance costs. However, these potential economic impacts would be associated with an individual SSC developed through a future rule, and not directly the result of this proposed procedural rule. This process is expected to be applicable to a relatively small proportion of waterbodies. However, the number of waterbodies in the state that may be eligible for SSC, or for which the permittees or other entities would be interested in pursuing an SSC, is unknown.
10. Effect on Small Business (initial regulatory flexibility analysis): As discussed above, this rule is not expected to incur costs other than those that would be incurred under the existing rule.
11. Agency Contact Person:
Kristi Minahan, Wisconsin Department of Natural Resources, Bureau of Water Quality WY/3, P.O. Box 7921, Madison, WI 53707-7921; Kristi.Minahan@Wisconsin.gov; 608-266-7055 12. Place where comments are to be submitted and deadline for submission: A hearing was held on September 12, 2019. The department accepted written comments at the public hearings, by regular mail, and by email. The comment submission deadline was September 20, 2019. After that comment period, Board Order WT-17-12 was adopted by the Natural Resources Board at its December 2019 meeting, along with another related rule, WY-23-13 regarding waterbody assessments using biological metrics, which this rule cross-references extensively. After approval by the Governor, both rules were submitted for legislative review. Both rules were subsequently recalled by the department from legislative committees on February 28, 2020 to make germane modifications. The modifications were made primarily within the waterbody assessments rule (WY-23-13), and included changing the term “biocriteria” to “biological assessment thresholds” and making associated structural revisions that necessitated renumbering. Accordingly, the SSC rule contains minor revisions to reflect the terminology changes and to update the cross-references to the other rule. This rule reflects these germane modifications.
Section 1 NR 102.01 (1) is amended to read:
NR 102.01 Purpose. (1) The purpose of this chapter is to establish, in conjunction with chs. NR 103 to 105, water quality standards for surface waters of the state pursuant to s. 281.15, Stats. This chapter describes the designated use categories for such waters and the water quality criteria necessary to support these uses. This chapter and chs. NR 103 to 105chapter, chs. NR 103 to 105, and ch. NR 119 constitute the water quality standards for the surface waters of Wisconsin.
Section 2. NR 102.06 (7) is amended to read:
NR 102.06 (7) Site-specific criteria. A criterion contained within this section may be modified by rule for a specific surface water segment or waterbody. A site-specific criterion may be adopted in place of the generally applicable criteria in this section where site-specific data and analysis using scientifically defensible methods and sound scientific rationale demonstrate a different criterion is protective of the designated use of the specific surface water segment or waterbody. Procedures for developing site-specific criteria for phosphorus are established in ch. NR 119. Section 3. NR 119 is created to read:
