Wis. Stat. § 283.16 — WI Code / Chapter 283 / Section 283.16
Statewide variance for phosphorus.
Status: in_force

(1) Definitions. In this section:

(a) “Basin” means the drainage area identified by an 8-digit hydrologic unit code, as determined by the U.S. Geological Survey.

(b) “Category” means a class or category of point sources specified by the department under s. 283.13 (1) or publicly owned treatment works.

(d) “Existing source” means a point source that was covered by a permit on December 1, 2010.

(e) “Major facility upgrade” means the addition of new treatment equipment and a new treatment process.

(g) “Nonpoint source” has the meaning given in s. 281.16 (1) (e) .

(h) “Target value” means the following:

1. For a point source in a watershed for which a federally approved total maximum daily load under 33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the point source complied with its effluent limitation based on the total maximum daily load in effect on April 25, 2014.

2. For a point source in a watershed for which no federally approved total maximum daily load under 33 USC 1313 (d) (1) (C) is in effect on April 25, 2014, the number of pounds of phosphorus that would be discharged from the point source during a year if the average concentration of phosphorus in the effluent discharged by the point source during the year was 0.2 milligrams per liter.

(i) “Water quality based effluent limitation” means an effluent limitation under s. 283.13 (5) , including an effluent limitation based on a total maximum daily load under 33 USC 1313 (d) (1) (C) approved by the federal environmental protection agency.

(2) Initial determination concerning the water quality standard for phosphorus.

(a) The department of administration, in consultation with the department of natural resources, shall determine whether attaining the water quality standard for phosphorus, adopted under s. 281.15 , through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible because it would cause substantial and widespread adverse social and economic impacts on a statewide basis. The department of administration may make separate determinations under this paragraph for statewide categories of point sources.

(b) The department of administration shall include all of the following in its determination under par. (a) , based on water quality based effluent limitations for phosphorus determined by the department of natural resources:

1. A calculation of the statewide cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades.

2. A calculation of the statewide per household cost for water pollution control by publicly owned treatment works that cannot achieve compliance with water quality based effluent limitations for phosphorus without major facility upgrades, including the projected costs of compliance with those water quality based effluent limitations, and a calculation of the percentage of median household income the per household cost represents.

4. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause substantial adverse social and economic impacts on a statewide basis.

5. A determination of whether the cost of compliance with water quality based effluent limitations for phosphorus by point sources that cannot achieve compliance without major facility upgrades would cause widespread adverse social and economic impacts on a statewide basis.

(c) The department of administration shall make a preliminary determination under par. (a) no later than the 240th day after April 25, 2014. The department of administration shall provide public notice, through an electronic notification system that it establishes or selects, of its preliminary determination and shall provide the opportunity for public comment on the preliminary determination for at least 30 days following the public notice.

(d) The department of administration shall consider any public comments in making its final determination under par. (a) and shall make the final determination no later than the 30th day after the end of the public comment period.

(e) The department of administration shall send a notice that describes its final determination under par. (a) to the legislative reference bureau for publication in the administrative register.

(em) If the department of administration determines under par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the department of natural resources shall seek approval under 40 CFR Part 131 from the federal environmental protection agency for the variance under this section.

(f) If the department of administration determines under par. (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible, the determination remains in effect until the department of administration finds under sub. (3) (c) that the determination is no longer accurate.

(2m) Water quality standards review. As part of the review of water quality standards under s. 281.15 (6) , as required by 33 USC 1313 (c) (1), if the variance under this section is in effect, the department shall determine whether formal review under sub. (3) should be undertaken, considering any comments it receives on the variance.

(3) Review of findings and requirements of variance.

(a) Within 10 years after the federal environmental protection agency approves, under sub. (2) (em) , the variance under this section, if a determination under sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible is in effect, or upon a determination under sub. (2m) that review under this subsection should be undertaken, the department of administration, in consultation with the department of natural resources, shall prepare a report, no later than September 1, to evaluate whether the determination under sub. (2) (a) remains accurate. The department of administration shall consult with permittees that would be subject to water quality based effluent limitations for phosphorus and other interested parties in preparing the report.

(b) The department of natural resources shall provide all of the following to the department of administration for the report under par. (a) :

1. A determination of whether technology is reasonably available for point sources to comply with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a) .

2. A determination of whether technology is reasonably available for any category of point sources to comply with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a) .

3. A determination of whether any technology that is reasonably available for compliance with effluent limitations for phosphorus that are more stringent than those in sub. (6) (a) is cost effective.

4. The results of the most recent review under sub. (3m) (a) .

(c) Based on its report under par. (a) , the department of administration, in consultation with the department of natural resources, shall decide whether the determination that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible remains accurate.

(cm) If the department of administration decides under par. (c) that the determination remains accurate, the department of natural resources shall decide whether it is appropriate to apply more stringent effluent limitations than those in sub. (6) (a) to all point sources or to any category of point sources, based on the availability and cost effectiveness of technology for compliance and, if so, specify those more stringent effluent limitations based on the report under par. (a) .

(d) The department of administration shall provide public notice of its preliminary decisions under par. (c) no later than the 60th day after preparing the report under par. (a) and shall provide the opportunity for public comment on the decisions for at least 30 days following the public notice.

(e) The department of administration shall consider any public comments in making its final decisions under par. (c) and shall make the final decisions no later than the 30th day after the end of the public comment period.

(f) The department of administration shall send a notice that describes its final decisions under par. (c) to the legislative reference bureau for publication in the administrative register.

(g) If the department of administration decides under par. (c) that the determination described in that paragraph remains accurate, the department of natural resources shall seek aproval from the federal environmental protection agency under 40 CFR 131.21 for renewal of the variance under this section.

(3m) Highest attainable condition review.

(a) Every 5 years after the variance under this section is approved by the federal environmental protection agency, the department shall, as part of the review required by 40 CFR 131.14 (b) (1) (v) , review the interim effluent limitations under sub. (6) (a) , or any other effluent limitations that are in effect as a result of a previous review under this subsection or sub. (3) , and determine whether they are consistent with the highest attainable condition for the point sources and categories of point sources that are eligible for the variance under this section. In conducting this review, the department shall use all existing and readily available information. The department shall hold a public hearing in order to receive additional information and public comment. The department shall publish notice of the hearing on the department’s Internet site at least 45 days before the hearing date.

(b) The department shall submit the results of a review under this subsection to the federal environmental protection agency within 30 days after determining that the review under par. (a) has been completed.

(c) If the department does not conduct a review within the time specified under par. (a) , the variance under this section will cease to be available until the department completes the review and submits the results of the review to the federal environmental protection agency.

(d) If the department does not submit the results of a review to the federal environmental protection agency within the time specified under par. (b) , the variance under this section will cease to be available until the department submits the results of the review to the federal environmental protection agency.

(e) In addition to the review under par. (a) , at the time the variance under this section is initially approved for a point source, and at the time the source’s permit is reissued, modified, or revoked and reissued, the department may review the interim effluent limitations under sub. (6) (a) , or any other effluent limitations that are in effect as a result of a previous review under this subsection or sub. (3) , and determine whether they are consistent with the highest attainable condition for the point source.

(4) Availability of variance.

(a) When a determination under sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible and approval of the variance under this section by the federal environmental protection agency are in effect, a permittee is eligible for a variance to the water quality standard for phosphorus for an existing source if all of the following apply:

1. The determination applies to the existing source.

2. Subject to par. (am) 1. , the permittee certifies that the existing source cannot achieve compliance with the water quality based effluent limitation for phosphorus without a major facility upgrade.

3. The permittee agrees to comply with the requirements under sub. (6) .

(am)

1. The department shall approve an application for a variance if the requirements in pars. (a) and (b) are complied with, unless the department determines that the certification under par. (a) 2. is substantially inaccurate.

2. The department shall act on an application for a variance under this section no later than the 30th day after the day on which the department receives the application for the variance.

3. If the department does not act on the application for a variance by the deadline under subd. 2. , the application is approved.

(b) A permittee may apply for the variance under this section in any of the following ways:

1. By requesting the variance in the application for reissuance of the permit.

2. By requesting the variance within 60 days after the department reissues or modifies the permit to include a water quality based effluent limitation for phosphorus.

3. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus, by requesting a modification of the permit.

4. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus and that requires the permittee to submit to the department options for complying with the water quality based effluent limitation, by submitting a request for the variance as a compliance option.

(c) After an application for a variance is submitted to the department under par. (b) 2. , 3. , or 4. , and until the last day for seeking review of the department’s final decision on the application or a later date fixed by order of the reviewing court, the water quality based effluent limitation for phosphorus and any corresponding compliance schedule are not effective. All other provisions of the permit continue in effect except those for which a petition for review has been submitted under s. 283.63 .

(d) Notwithstanding sub. (3m) (c) and (d) , the variance under this section remains in effect for an approved point source until the point source’s permit is reissued, modified, or revoked and reissued.

(e) Notwithstanding s. 227.42 , there is no right to a hearing under this subsection.