Senate Bill 547

Weininger, Kaufert and Klenke. Referred to Committee on Government Operations, Public Works, and Telecommunications.

An Act to amend 283.63 (1) (am) and 283.63 (4); and to create 283.13 (7) and 283.16 of the statutes; relating to: adaptive management plans for reducing discharges of phosphorus and total suspended solids to the waters of the state and a statewide variance to the water quality standard for phosphorus for certain dischargers.

     This bill provides for a variance to limits on the amount of phosphorus allowed in discharges to water bodies that contain excessive amounts of phosphorus, if conditions specified in the bill are met. The bill also authorizes the use of adaptive management, explained below, to comply with water quality standards for phosphorus and total suspended solids.

     The federal Clean Water Act allows the federal Environmental Protection Agency (EPA) to delegate responsibilities under the act, including issuing wastewater discharge permits for point sources (factories and sewage treatment plants, for example), to a state if the state’s laws comply with requirements in the act. EPA has delegated these responsibilities to this state.

     Consistent with the Clean Water Act, current state law requires the Department of Natural Resources (DNR) to promulgate rules setting water quality standards for the waters of the state. The standards include criteria for specific pollutants. A criterion may be narrative (describing the characteristics that the water should have) or numeric (specifying the maximum concentration of a pollutant).

     Under current federal and state law, wastewater discharge permits include restrictions, called effluent limitations, on the amount of various pollutants that may be discharged. One type of effluent limitation is applicable without regard to the quality of the receiving water body and is based on the level of control achieved using treatment technology that is reasonably available (considering cost, among other things) for limiting the discharge of a pollutant. If this kind of limitation (called a technology based effluent limitation) is not sufficient to ensure that a water quality standard for a pollutant will be met in a particular water body, permits for sources that discharge into the water body must generally contain effluent limitations for the pollutant that are more stringent than the technology based effluent limitation and that are designed to ensure that the water quality standard will be met. This kind of limitation is called a water quality based effluent limitation.

     Current law allows DNR to grant a permittee a variance to a water quality based effluent limitation if the permittee demonstrates that complying with the effluent limitation is not feasible for one of several reasons, including that applying the effluent limitation to the source would cause substantial and widespread adverse social and economic impacts in the area where the source is located. The term of a variance may not exceed five years. A variance may be renewed, but only for as long as it remains infeasible for the source to comply with the water quality based effluent
limitation. Variances are subject to review and approval by EPA.

     In 2010, DNR promulgated rules adding a numerical water quality criterion to the water quality standard for phosphorus. Some water bodies in Wisconsin do not comply with the water quality standard for phosphorus. DNR’s rules include some options for sources that might have difficulty complying with a water quality based effluent limitation for phosphorus, including extended schedules for achieving compliance.

     The options in the phosphorus rule also include a variance to water quality based effluent limitations for stabilization pond and lagoon wastewater treatment systems, which DNR indicates primarily serve small communities and small industries. A permittee with one of these systems must provide information showing that compliance would cause substantial and widespread adverse social and economic impacts in the area where the system is located. If the variance is granted, the permit must include an effluent limitation based on the best past performance of the source with regard to phosphorus discharges and a requirement that the permittee investigate techniques that would enable compliance with a water quality based effluent limitation.

     This bill requires the Department of Administration (DOA), in consultation with DNR, to consider the costs of compliance with water quality based effluent limitations for phosphorus by sources that cannot achieve compliance without making major facility upgrades. A major facility upgrade is the addition of new treatment equipment and a new treatment process. If DOA determines, after public notice and consideration of public comments, that compliance by these sources is not feasible because it would cause substantial and widespread adverse social and
economic impacts on a statewide basis, the bill provides for a variance to a water quality based effluent limitation for phosphorus for a source that was covered by a permit before the phosphorus water quality standard took effect if the permittee certifies that the source cannot comply with the effluent limitation without a major facility upgrade.Under the bill, if a permittee receives the variance, DNR must include in the the permit interim effluent limitations for phosphorus that are generally lower in each successive permit term and must require the source to achieve compliance with the water quality based effluent limitation by the end of the fourth permit term for which DNR approves the variance (generally within 20 years). DNR must also require the implementation of the permittee’s choice of three kinds of measures to reduce the amount of phosphorus entering the waters of the state.

     The measures from which a permittee that receives the variance may choose are constructing a project or implementing a plan, approved by DNR, to reduce phosphorus pollution from other sources in the basin in which the source is located in an amount equal to the number of pounds by which the amount of phosphorus discharged by the point source exceeds a target amount specified in the bill; having another person construct such a project or implement such a plan, also approved by DNR; or making payments to counties in the basin to provide cost sharing for projects that enable agricultural sources of nonpoint phosphorus pollution (runoff) to comply with state standards for reducing runoff or for staff to implement projects that reduce runoff. The payments are initially $50 times the number of pounds by which the amount of phosphorus discharged by the point source exceeds a target amount specified in the bill. DNR adjusts the amount per pound based on increases in the consumer price index. A county is not required to accept these payments.

     If DOA initially determines that compliance with water quality based effluent limitations for phosphorus by sources that cannot achieve compliance without making major facility upgrades is infeasible, the bill requires DOA, in consultation with DNR, to review the determination every five years. If DOA finds that the determination is no longer accurate, the variance terminates. As part of this review, the bill also requires DOA to determine whether cost-effective technology is available that would allow sources to comply with more stringent interim limitations than those specified in the bill. If so, DNR must include those more stringent interim limitations in permits when they are renewed.

     Adaptive management is a method for achieving compliance with a water quality standard in a water body that contains excessive amounts of a pollutant. Under adaptive management, a permittee who is subject to a water quality based effluent limitation implements a plan under which the permittee works with others to reduce the amount of pollution from various point sources and nonpoint sources and uses information from monitoring, modeling, and other sources to adjust the plan as needed. The permittee is subject to less restrictive effluent limitations while the adaptive management plan is being implemented and less restrictive pollutant limits may continue to apply if the water quality standard is achieved.

     The bill authorizes DNR to allow a permittee to use adaptive management to achieve compliance with the water quality standard for phosphorus or total suspended solids (particles in the water) and, if it does so, to allow the permittee four permit terms to achieve compliance.