CR 21-027 Rule Text

The statement of scope for this rule, SS 051-19 was approved by the Governor on May 30, 2019, published in Register No. 762A2 on June 10, 2019, and approved by the Natural Resources Board on September 25, 2019. This rule was approved by the Governor on September 9, 2021.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES

The Wisconsin Natural Resources Board proposes an order to repeal NR 216.022, 216.07 (6) (a) (note), (8) (e) (note), 216.21 (4), 216.29 (1) (e) (note), 216.32 (5), and 216.42 (6) and (10); to renumber 216.04, and 216.42 (2); to renumber and amend NR 216.06 and 216.415; to amend NR 216.003 (1), 216.005 (note), 216.03 (intro.) and (note), 216.03 (2) (a) and (b), 216.07 (intro), (1) (intro.), (5) (a), (6) (a), (6) (a) 2. and 4., (8) (intro) and (b), 216.09, 216.21 (2) (b) 1. and 7., (3) (b) 3 and (Note), (3) (e) 2., 216.22 (4) and (note), 216.27 (1), (3) (c) 9., 216.29 (1) (a), (b), (e) and (g), 216.31, 216.32 (2) and (4) (note), 216.42 (1), (3), and (3) (note), 216.43 (1), (1) (note), and (2), 216.44 (1) and (3), 216.455 (1) and (2), 216.46 (4) (a), 216.47 (1), 216.48 (1) (b) (note), 216.50 (1) (a), 216.54, and 216.55 (2) and (note); and to create NR 216.002 (1m), (7m), (12m), (18m), (19m), (23m), (25m), (36m), (37m), (39g), and (39r), 216.003 (3), 216.006, 216.007, 216.031 (4) and (note), 216.032, 216.04 (2) and (3), 216.07 (7) (i), (8) (f) to (j), (10) and (11), 216.075, 216.10 (5) (e) to (g), 216.27 (3)(c)9. (note), and (3)(j) 6., 216.42 (1), (2) (b) and (c), 216.42 (8) (note) and (8m), 216.43 (4) and (5), 216.46 (4) (g), 216.49 (3) and (4), and 216.55 (6) relating to storm water discharge permits and affecting small business.

WT-09-19

Analysis Prepared by the Department of Natural Resources

1. Statute Interpreted:

Section 283.33(1), (1m), and (9), Stats.

2. Statutory Authority:

Section 283.33(8), Stats.

3. Explanation of Agency Authority:

Section 283.33(8), Stats., directs the department to promulgate rules for the administration of s. 283.33, Stats., which sets forth the requirements for storm water discharge permits under the Wisconsin Pollutant Discharge Elimination System (WPDES) program. Chapter NR 216, Wis. Adm. Code, was initially promulgated in 1994 pursuant to the department’s statutory authority and subsequently amended in 2004. Chapter NR 216 establishes the criteria under which municipalities, industrial facilities, and construction site landowners must obtain coverage under a WPDES storm water discharge permit pursuant to s. 283.33, Stats. The department proposes amending ch. NR 216 to align with federal storm water requirements and effectuate consistency with relevant changes to state statutes and federal requirements.

4. Related Statutes or Rules:

This rule is directly related to the statewide non-agricultural performance standards pursuant to ch. NR 151, Wis. Adm. Code, and s. 283.33(8), Stats., directing the department to develop rules for the administration of storm water discharge permits.

5. Plain Language Analysis:

Chapter NR 216 outlines the provisions for storm water discharge permits that apply to municipalities in urban areas, industrial facilities, construction sites that disturb one acre or more, and construction site that disturb less than one acre but are part of a larger common plan of development. This chapter was last updated in 2004. The purpose of this proposed rule change is to address the issues identified by the U.S. Environmental Policy Agency (USEPA) Region 5 by letter to the DNR dated July 18, 2011 as a result of their Legal Authorities Review (LAR); update the references to the non-agricultural and transportation facility performance standards in ch. NR 151; codify other federal storm water requirements that have become effective since the previous promulgation of amendments to ch. NR 216; and update fees authorized by s. 283.33 (9), Stats.

(A) The proposed changes that affect all subchapters under ch. NR 216 are briefly summarized below:

(1) Definitions—The department proposes defining additional terms to support language in the subchapters.

(2) National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule—The department proposes creating s. NR 216.006 to require electronic submittal of permit applications, reports, and other documents. The section also establishes a waiver process for those who provide justification for submitting documents in hard copy. All references to document submittal requirements have been updated to reference s. NR 216.006.

(3) References to ch. NR 151—The department proposes to update references to ch. NR 151 to include sections that became effective on January 1, 2011.

(4) Water quality standards—The department proposes to create s. NR 216.007 to improve consistency with federal regulations regarding protections for outstanding resource waters (ORW), exceptional resource waters (ERW), and impaired waters. This section provides more direct code support for provisions in storm water permits requiring protection of high-quality water resources and reduction of pollutant discharges to impaired waters. Total Maximum Daily Loads (TMDLs) are required to be included in WPDES permits by s. 283.31(3)(d)3, Stats. and s. NR 205.067(3)(a), Wis. Adm. Code. The existing statute and code are tailored toward implementation for traditional point sources such as wastewater treatment plants. The department proposes modifications to ch. NR 216 to clarify how TMDLs are addressed in storm water permits.

(5) Coverage under subsequent permits—The department proposes creating s. NR 216.003(3) to clarify applicability of expired and reissued general permits to entities covered under an industrial or construction general permit.

(6) Other environmental programs—The department proposes repealing ss. NR 216.022, 216.21(4), and 216.42(6) to remove exemptions from storm water permitting for activities covered under other department programs. This revision addresses EPA issues 23 and 24 of the LAR.

(B) The proposed changes that affect the municipal subchapter are briefly summarized below:

(1) National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule—The department proposes amending Subchapter I of ch. NR 216 to be consistent with federal regulations requiring permit conditions that are clear, specific, and measurable for the minimum control measures included in s. NR 216.07 and provide for public input on those conditions. The changes proposed clarify the department’s authority to define requirements for these programs in permits, implement improvements in each successive permit, and obtain the information needed for those improvements from permit applications, reapplications, and reporting.

(2) Application requirements—The department proposes amending subchapter I to clarify the application requirements for coverage under general and individual permits.

(3) The department proposes to create s. NR 216.07(8)(f) to require permittees to identify any other entities they are relying on to satisfy some of the permit obligations within the annual report. This revision addresses EPA Issue 56 of the LAR.

(4) Annual reporting requirements—The department proposes creating subsections within s. NR 216.07(8) to evaluate the effectiveness of an MS4s storm water management program within the annual report and require MS4s to summarize any changes to required programs. This revision addresses LAR issues 57 and 67.

(5) Records—The department proposes to create s. NR 216.07(11) to require permittees to retain records related to permit requirements and make them available to the public. This revision addresses LAR issue 67.

(6) TMDLs—The department proposes amending s. NR 216.04 to clarify when TMDL provisions will be included in permits. The department proposes creating s. NR 216.07 (7) to require, within a permit, mapping related to TMDL implementation. The department proposes creating s. NR 216.07 (10) to provide a framework for TMDL implementation through demonstrated progress when meeting the TMDL in one 5-year permit term is not feasible. The existing urbanized area performance standard language previously listed under pollution prevention has also been moved into this section for clarity.

(7) Authorized local program—The department proposes renumbering s. NR 216.415 to s. NR 216.10. Additional discussion is provided in the discussion of proposed changes to the construction subsection.

(C) The proposed changes that affect the industrial subchapter are briefly summarized below:

(1) Permitted area—The department proposes amending s. NR 216.21(2)(b) to remove the exclusion of access roads and rail lines from the area covered by an industrial storm water discharge permit. This exclusion is not authorized by federal law. This revision addresses LAR issue 52.

(2) Construction and demolition disposal sites—The department proposes amending s. NR 216.21(2)(b)7. to clarify that construction and demolition waste disposal sites require industrial storm water permits.

(3) Location information—The department proposes amending ss. NR 216.21(3)(b)3.(Note) and 216.21(3)(e)2. to require that an applicant certifying ‘no exposure’ provide its latitude and longitude as part of that request. As a requirement, this information needs to be moved from a note to a code section. This revision addresses LAR issue 53.

(4) Storm Water Pollution Prevention Plan (SWPPP)—The department proposes amending s. NR 216.27 to allow the submittal of a SWPPP in lieu of a SWPPP summary form. The department proposes amending, ch. NR 216 to require industrial permittees to address ERW, ORW, impaired waters, and TMDLs in their SWPPP where applicable.

(D) The proposed changes that affect the construction subchapter are briefly summarized below:

(1) Authorized local program—The department proposes renumbering NR 216.415 to 216.10 and amending language within s. NR 216.415. This section provides for streamlined permitting for construction sites that require both state and local construction site erosion control permit coverage in participating municipalities. The section is renumbered to move it into the municipal permit subchapter to clarify that the department plans to limit participation to only those municipalities that hold an MS4 storm water discharge permit. The amendments require transfer of permit submittal documents from the participating municipality to the department before permit coverage is conveyed by both entities. It also includes references to provisions in the construction site chapter on permit coverage denial, revocation, and individual permit processes. The amendment adds a requirement for the participating municipality to notify the department of compliances issues that cannot be resolved within a specified time frame. This revision addresses EPA Issue 25 of the LAR.

(2) Exemptions for certain agricultural and silvicultural activities—The department proposes clarifying ss. NR 216.42 (2) to (3) and 216.57 (3) to be more consistent with state statute and federal regulations. The drainage district exemption in s. NR 216.42 (8m) incorporates an exemption added to s. 283.33 (1m) (a) 3. conditioned to maintain consistency with the Clean Water Act per EPA comment. Drainage district ditch maintenance projects no more than 40 foot total width and under 1 mile in length typically qualify under the routine maintenance exemption under s. NR 216.42 (8).

(3) Routine maintenance—The department proposes creating a note to s. NR 216.42 (8) to better align with federal implementation of this exemption and provide regulatory certainty.

(4) Erosion control and storm water management plan—The department proposes adding requirements to discuss impacts to ORW, ERW, impaired waters, and TMDLs, in the list of elements required to be included in the plan.

(5) Update fee structure and program delivery-The department proposes amending s. NR 216.43 (2) to update construction site storm water discharge permit fee categories and fees. The department also proposes creating s. NR 216.43 (5) to clarify that permittees are required to reapply for coverage when the duration of land disturbing construction activity extends longer than 3 years.

(6) Certificate posting—The department proposes amending s. NR 216.455 (2) to clarify that certificates of permit coverage shall be posted in publicly accessible locations.

(7) Amendments—The department proposes amending s. NR 216.50 to clarify the circumstances where an amendment is required and when a new notice of intent is warranted.

6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:

Under 40 CFR 123.25(a), “[a]ll State Programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each…” which includes, among other NPDES permit programs, storm water discharge permits under 40 CFR 122.26; general permits under 40 CFR 122.28; and conditions applicable to specified categories of permits under 40 CFR 122.42.