Responses to Comments on EPA’s Final Withdrawal of Certain Federal 

Aquatic Life Water Quality Criteria Applicable to Wisconsin

Comments received on March 16, 2011 from Julian Adler, organization unknown. 

Comment: 

While the differences between Wisconsin allowance of concentration of chronic and 

acute copper and nickel, and chronic endrin and selenium are slight and in some cases 

Wisconsin's proposed equations for concentration of metals in water is stricter than that of 

the EPA, it should be noted that the formula for the concentration for Chronic Nickel Criteria 

for cold water, warm water sportfish, warm water forage fish, and limited forage fish is more 

lax than that set out by the EPA. While this is merely a note and not a demand for action, the 

EPA would do well to remember that giving any amount of autonomy to a State in terms of 

environmental protocol opens the gate for more autonomy. In the future it might be best if all 

rules adopted by States were as strict as or stricter than the national rules.

EPA Response: 

After promulgating the 1995 Water Quality Guidance for the Great lakes System (the 

Guidance), Great Lakes States, including Wisconsin, were required to adopt criteria 

consistent with those published in the Guidance within two years (CWA Section 118(c)(2), 

33 U.S.C. 1268). States have the authority to adopt water quality standards that are more or 

less stringent than the Guidance criteria based on site-specific circumstances as specified in 

Procedure 1 of Appendix F of 40 CFR Part 132. As further described in this section and in 

CWA Section 131.11(a), a State’s water quality standards must be based on a sound 

scientific rationale and be protective of the designated use. Per CWA 131.11(b)(1), States 

and authorized Tribes have the flexibility to adopt water quality standards based on:

 EPA’s CWA Section 304(a) Guidance, including the 1995 Great Lakes Guidance,

 Modifications to the CWA Section 304(a) or Guidance criteria to reflect site-specific 

conditions, or

 Other scientifically defensible methods.

In deriving Wisconsin’s revised chronic nickel aquatic life criteria equation for Cold 

Water, Warm Water Sportfish, Warmwater Forage Fish, and Limited Forage Fish uses, the 

State calculated a slightly different intercept than EPA. While Wisconsin used a different 

intercept (0.0591 instead of 0.0584), the difference is so slight (only 0.0007) that when 

plugged into the State’s equation, the resulting criterion is virtually identical to EPA’s at a 

given hardness. For example, at a hardness of 200 mg/L as CaCO3, using either the federal or 

Wisconsin’s equation results in a chronic nickel criterion of 88.5 μg/L. EPA approved WI’s 

method for revising the chronic nickel criteria for these uses as acceptable, scientifically

defensible, site-specific modifications of EPA’s Guidance criteria. Moreover, EPA believes 

the equation used by Wisconsin to calculate the chronic nickel criteria for these uses, results 

in criteria that are protective of the designated use, and are therefore consistent with CWA

Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and 132. 
Comments received on March 26, 2011 from Tracy Leonard, Student, American Public 

University System.

Comment:

Through my business law class this proposal has been brought to my attention. I wanted 

to take the time to inform you that I am against this proposal. I am against this proposal 

because I consume the fish in the Great Lakes. More importantly, the blue gill, rainbow trout, 

and other pan fish in Lake Michigan. I believe this proposal was requested to benefit the 

companies dumping into my Great Lakes and I hope that the citizens eating these animals 

will be considered when a ruling is made on this proposal.

EPA Response:

States adopt different sets of water quality criteria for the protection of aquatic life or 

human health. The purpose of this rule is to withdraw the federal aquatic life criteria, not 

human health criteria, for chronic and acute copper and nickel, and chronic endrin and 

selenium for certain waters in the Great Lakes System in Wisconsin designated for aquatic 

life use. The removal of the federal aquatic life criteria will allow the State to implement its 

adopted and EPA-approved aquatic life criteria, and will not impact any human health water 

quality criteria that are already adopted by the State. Therefore, the level of protection 

currently provided by the State for fish consumption will not change with this rulemaking.