Statement of Scope
Department of
Natural Resources
Relating to
:
|
Revisions to chapters
NR102
,
NR 104
, NR 219
and other related
permit program
regulations for the purpose
of updating
Wisconsin’s
water quality criteria
for pathogens and recreational uses;
and updating
related WPDES permit implementation procedures for the revised water quality
standards
to be consistent with EPA’s recreational water quality criteria.
|
1.
Finding/nature of emergency (Emergency Rule only):
The rules will
be proposed as permanent rules.
2
.
Detailed description of the objective of the
proposed
rule
:
The primary objective of this rule is to revise
Wisconsin’s
recreational use categories and
water quality criteria
based on the
federal
recommendations
published in 2012.
Recreational water quality criteria (RWQC)
protect
people
from
waterborn
e
illnesses
that may be caused by
human
fecal contamination while
recreati
ng in and on the water.
The
pathogen indicator
concept
is
employed
in
RWQC.
Typically the pathogen indicator
itself
does not cause disease, rather, it signals the potential for
illness
caused by human fecal contamination
.
Wisconsin
has
used fecal coliform bacteria as the pathogen indicator
since
the 1970s
.
E
pidemiological studies
conducted more recently
have
found that fecal coliform bacteria are not a reliable indicator
for
fecal pollution
.
The U.S. EPA
now
recommends using either
Escherichia coli
(
E. coli
)
or
Enterococci
as the pathogen indicator for freshwater
because these bacteria species
provide a better
link
between
human illness
and
exposure to
human
fecal
pollution
.
Wisconsin’s RWQC are
outdated.
While Wisconsin’s codified
RWQC
for fecal coliform bacteria
(s.
NR 102.04(6)
)
apply
to all surface waters
, t
he Great Lakes (coastal) waters of
Wisconsin also have criteria for
E. coli
bacteria that were promulgated by EPA pursuant to
33 USC 1313
(i)(2) (B
EACH
Act) on November 29, 2004. The
E. coli
criteria that were “over- promulgated” by EPA were based on the federally
published 1986
E. coli
criteria. As a result,
municipal
wastewater dischargers to the Great Lakes are required to monitor for both fecal coliform and
E. coli
as part of their permits. For many dischargers, this is an added compliance requirement that dischargers to inland waters do not have. Adopting the same criteria statewide will provide consistency across the state, reduce testing requirements in some permits, and increase efficiency in permitting decisions,
determining if waters are
impaired, and developing and implementing Total Maximum Daily Loads (TMDLs).
The proposed rules revise Wisconsin’s
RWQC
to be consistent with EPA’s
recommended
criteria
and methodologies
published in the federal register on Novemb
er 29, 2012, Volume 77, No. 230
, pages 71191-71192
.
These revised federal criteria and assessment methods were published pursuant to
33 USC 1314
(a)(1) and (9).
Pursuant to
33 USC 1313
(i)(1)(B) Wisconsin is required to adopt and submit
to EPA
these revised
federal
criteria for pathogens
in
coastal waters
(
Great Lakes
), but the
EPA’s
2012 criteria were recommended
for all surface waters that support
p
rimary
recreational uses.
Consequently, th
is
rule package propose
s
to revise the criteria statewide
.
Adopting state water quality criteria based on the federal 2012 recommendations will provide better public health protection for those individuals that recreationally use Wisconsin’s surface waters because the state criteria will be based on more recent scientific studies.
Recreational water quality criteria are used to establish permit limits for bacteria, assess waterbodies for bacteria-caused impairments, and develop restoration plans for waters impaired for bacteria. In this rule package, the Department will revise the RWQC to be consistent with EPA’s 2012 RWQC and, if necessary, establish procedures for assessing waters against these criteria and calculating
Wisconsin Pollution Dicharge Elimination
System (
WPDES
)
permit limits to meet these criteria.
Revising the RWQC will also allow Wisconsin to continue to receive grants f
rom the federal government under
the
Beaches Environmental Assessment and Coastal Health
(
BEACH
)
Act
.
As authorized in
33 USC 46
(b)(2)(A)(i)
,
EPA give
s
program development and implementation grants
to States for monitoring and notification
of
coastal recreation waters.
Since 2003, t
he Department has received
these
grants
annually
ranging
from $217,000 to $265,000
and
has
distributed these funds to local communities
to monitor their beaches
,
notify
community members in a timely manner when issues arise, and collect information necessary to
restore problem beaches.
Healthy beaches are important to
business
development, especially the tourism industry
.
To be eligible for a BEACH Act grant,
the
state’s water quality program must be consistent with the performance criteria established by the EPA
(
33 U
SC 1346
(b)(2)(A)(i)
)
.
In
the National Beach Guidance and Required Performance Criteria for Grants published in
2014, the EPA added
adoption of new or revised recreational water quality standard
as a
performance criterion to ensure that all BEACH Act states ha
ve the most up-to-date
regulations
(p. 19 and chapter 4 of EPA-823-B-14-001)
.
In the 2012 RWQC, EPA gave states the choice of indicator bacteria (
E. coli
or
Enterococci
). Since the adoption of the BEACH Act in 2004, Wisconsin and the other Great Lake states have monitored for
E. coli
in the Great Lakes. As such
, there is a large amount of data on
E. coli
levels in the Great Lakes. Additionally, the Department has been assessing inland and Great Lakes beaches against EPA’s 1986
E. coli
criteria.
Given these reasons, the Department will pursue using
E. coli
as the pathogen indicator to replace fecal coliform
in this rule package.
Furthermore,
the 2012 RWQC established two risk levels for the pathogen indicators and also gave states th
e
choice
between the two
(i.e., a choice to lower the standard).
The level selected may impact the number of beaches listed as impaired and the number of beach advisories issued.
As part of this rule package, t
he consequences of each level will be evaluated to ensure that the criteria selected adequately protect human health without being more stringent than reasonably necessary.
No state has elected the lower standard.
Statewide criteria are
appropriate in most situations. H
owever, there may be local
conditions under which statewide criteria are overly restrictive or under
-
protective. This
rule
revision will
incorporate specific situations or procedures
for the development of site-specific criteria
where the statewide criteria are
in
appropriate.
The 2012 federal recommendations include methodologies that states can use to modify the recommended numerical values for pathogen criteria if appropriate to reflect site specific conditions.
Water quality standards are comprised
of designated uses and criteria
to protect those uses. Designated uses represent the potential of that waterbody to support, for example,
r
ecreation,
a
quatic
l
ife, and
w
ildlife. Through these rule
revisions, the
Department will also pursue changes to the recreational designated use category to include subcategories. Currently, the general recreational use applies to all surface waters and has criteria that are designed to protect for primary contact recreation
(i.e., swimming)
. However, many waterbodies in Wisconsin have not been used for
primary contact recreation since the adoption of the Clean Water Act and have criteria that are overly restrictive. These waterbodies may be eligible to be designated a more appropriate subcategory and receive less stringent recreational criteria.
Additional changes
to associated rules
may be pursued which are reasonably related to those discussed here
such as
revisions to the list of a
pproved
test m
ethods for
bacteria/pathogens in wastewater effluent
,
development of
WPDES permit implementation procedures for the revised criteria
,
and
development of
factors to consider when listing waters as impaired for the revised criteria
.
3
.
Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives
:
Wisconsin employs
RWQC
in several
ways
to
protect
public health
: 1)
The WPDES Program uses codified
RWQC
to
calculate
water quality based effluent limits (WQBELs) for
municipal
wastewater
dischargers
statewide
.
However, dischargers to the Great Lakes are required to monitor for
both
fecal coliform and
E. coli
, while
dischargers
to inland lakes are only required to monitor for fecal coliform.
T
he proposed revisions
build statewide consistency for the pathogen indi
cator and subsequently should
increase efficiency in permit drafting
, reduce testing requirements
and cost for
some
facilities
, and improve equality among
dischargers
.
2)
RWQC
are used to assess the quality of Wisconsin’s recreational waters
.
Currently,
Wisconsin uses the same monitoring and assessment protocols for both inland and Great Lakes
beaches
based on EPA’s 1986
for
E. coli
criteria
, reflected in Wisconsin’s Consolidated Assessment and Listing (
WisCALM
) Guidance
2016.
We anticipate that some minor changes will be needed to WisCALM Guidance to reflect the updated pathogen indicator. 3) Waterbodies not meeting RWQC are characterized as impaired, and a
restoration plan must be developed
and implemented. The t
ypical
restoration plan
uses
a t
otal maximum daily load (
TMDL
)
model to quantify how much of the pollutant can be allowed while achieving RWQC. Wastelo
ad allocations are defined in an established
manner for each facility discharging the pollutant to the impaired water. Revised RWQC are needed to
efficiently develop and implement
bacteria
TDMLs for impaired waters
in Great Lakes basins which currently have both fecal coliform and
E. coli
criteria.
While t
he alternative is
to not revise the R
WQC and maintain the status quo
, there are several disadvantages to this
.
First, the
inconsistencies and inefficiencies in the WPDES permit program and TMDL development
would remain. Second,
the Department may
lo
s
e
federal
BEACH
Act
grant dollars
if t
he state’s RWQC are not revised
.
Third
, EPA could promulgate the revised criterion for Wisconsin as they did in 2004
. If the EPA
does
promulgate criteria for Wisconsin,
their
rule-making process is unlikely to include revisions to related rules (e.g. discharge permit requirements, including compliance schedules) and would not eliminate the state’s published fecal coliform criteria. As such, Wisconsin’s current fecal coliform criteria
remain
codified, but EPA would likely impose additional monitoring requirements on all relevant dischargers to ensure the recreational use is adequately protected.
Additionally, if EPA promulgates
RWQC
, Wisconsin would lose the ability to select its own pathogen
indicator
and
acceptable
risk level and develop
site specific criterion procedures and subcategories of recreatio
nal uses.
4
.
Detailed explanation of statutory authority for the rule
(including
the
statutory citation and language):
Revisions to the recreational use, updated recreational water quality criteria, and newly developed impaired waters listing protocols
will be promulgated
under Wis. Stats ss.
281.12
,
281.13
and
281.15
and
281.65
:
•
Wis. Stat. s
.
281.12
grants
the WDNR general supervision and control to carry out the planning, management, and regulatory programs necessary for prevention/reduction of water pollution and for improvement of water quality.
•
Wis. Stat. s.
281.13(1)(a)
and
(b)
give the Department the authority to create rules to research and assess water quality in the state
.
•
Wis. Stat. s.
281.15
mandates that the
D
epartment promulgate water quality standards, including water quality criteria and designated uses. It recognizes that different use categories and criteria are appropriate for different types of waterbodies, and that the department shall establish criteria which are not more stringent than reasonably necessary to ensure attainment of the designated use for the waterbodies in question.
•
Wis. Stat
.
s.
281.65(4)(c)
and
(cd)
directs the Department to prepare a list of waters impaired by nonpoint source pollution.
The
WPDES
Permit program
procedures to implement the revised
standards will be promulgated under the following authority:
•
Wis. Stat. s.
283.31(3)
and
(4)
state
that the department may
issue a permit upon condition
that the permit contains limitations necessary to comply with any applicable federal law or regulation, state water quality
standards
,
a
nd total maximum daily loads.
•
Wis. Stat. s.
283.13(5)
states that the department shall establish more
stringent
limitations than required
und
er
s
ubs
(2) and (4) when necessary t
o
comply
with water quality standards
.
•
Wis. Stat. s.
283.37
gives the Department authority to promulgate rules regarding permit applications
.
•
Wis. Stat. s.
283.55
gives
the Department authority to impose monitoring and reporting requirements.
•
Wis. Stat. s.
283.83
requires that the Department establish a
continuing
planning process and that plans shall include implementation procedures including
compliance
schedule for revised water quality standards.
•
Wis. Stat.
s.
227.11(2)
provides the Department with the authority to promulgate rules that are necessary to administer the specific statutory directives in chapter 283.
5
.
Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule
:
2,820
hours -
total for three years
6
.
List with description of all entities that
may
be affected by the proposed rule
:
Business/industry:
Only f
acilities with
WQBELs
for
bacteria
/pathogens
that discharge to
surface waters
will
receive
revised
limits
consistent with
the
new
RWQC
.
The Department does not anticipate that many businesses/industries will fall into this category.
Municipalities: F
acilities with WQBELs for bacteria/pathogens
that discharge
to surface waters will receive revised limits consistent with the new RWQC.
State government: The rule update will enable WDNR to gain
efficiencies
in several internal processes allowing state
funds
to be used
more economically.
Local communities:
M
aintain eli
gibil
ity for BEACH Act grants
for beach monitoring, notification, and restoration.
Public: The public wil
l benefit from more appropriately protective
recreational water quality criteria
based on more recent scientific analyses
.
7
.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule
:
33 USC s. 1313(i)(1)(B)
(
section 303(i)(1)(B) of the Clean Water Act),
provides
that
states shall promulgate and submit pathogen and pathogen indicators for coastal recreation waters based on federal criteria published by USEPA under 33 USC s. 1314(a)(9)
. Coastal waters are defined in 33 USC s. 1362(21) and
the
definition
include
s
Great Lakes waters
.
33 USC s. 1313(c
)
(
section 30
3(c
) of
the Clean Water Act) require
s
that states periodically review and modify or adopt
,
if necessary, water quality standards.
This
requirement
applies to all surface waters in the state.
33 USC s. 1313(b
) provides th
at EPA may promulgate water quality standards if a state fails to promulgate a standard in accordance with the timeframes established
33 USC 1313
(a)
.
33 USC 1314
(a) requires that EPA develop and publish criteria for water quality for all waters for uses such as aquatic life, public health protection and recreation.
33 USC 1314
(a)(9) specifically requires that EPA publish revised water quality criteria for pathogen and pathogen indicators for coastal recreation waters.
The recommended recreational
criteria based on pathogens were published by EPA
in the federal register on November 29, 2012, Volume 77, No. 230., pages 71191-71192.
These revised federal criteria and
assessment
methods were published pursuant to
33 USC 1314
(a)
1
) and (9).
The Office of Water at USEPA published a fact sheet a
nd guidance document explaining
the recommended criteria
and assessment methodologies
(
EPA Publication 820-F-12-061, December 2012
;
and
Publication 820-F-12-058 2012)
.
Federal regulations (
40 CFR 131.10
and
11
) require states to develop
water quality standards that compri
se
of
uses and criteria to protect the uses.
40 CFR 131.11
(b) states that
the
criteria must be based on federal guidance, federal guidance modified to reflect site-specific criteria, or other scientifically-defensible methods.
40 CFR ss.
131.4
and
131.11
allow states to adopt their own water quality criteria so long as these criteria are protective of human health or welfare, enhance the quality of the water, and serve the purposes of the Clean Water Act. These
criteria must be based on sound
scientific rationale and must contain
sufficient parameters or constituents
to protect the designated use
.
Pursuant
to state
statutory
authority, t
he Department
is proposing to revise its criteria and recreational use categories
statewide
based
on the 2012 EPA recommended recreational
criteria
consistent
with
the federal requirements in
33 USC s. 1313
(
c) and (i)(1)(B)
and
federal regulatio
ns in
40 CFR 131.10
,
131.11
and
131.20
.
After promulgation, the revised criteria, site
specific criteria analyses and the creation of recreational sub categories require EPA approval pursuant to
40 CFR 131.20
and
131.21
.
The Department is also proposing to promulgate rules to establish WPDES permit implementation procedures for the revised standard
, to establish listing procedures for waters impaired for bacteria/pathogens, and test methods for effluent monitoring.
33 USC 46
(b)(2)(A)(i)
authorizes the EPA to give
program development and implementation grants
to s
tates for
monitoring and notification of
closures for
coastal recreation waters
.
T
o be eligible for a BEACH Act grant
, the
state’s water quality program must be consistent with the performance criteria established by the EPA
(
see
33 USC 1346
(b)(2)(A)(i)).
In the
National Beach Guidance and Required Performance Criteria for Grants
document
published in
2014
(EPA-823-B-14-001)
, the EPA added
adoption of new or revised recreational water quality standard
as a
performance criterion to ensure that all BEACH Act states ha
ve the most up-to-date
water quality standards
(
p. 19 and chapter 4 of EPA-823-B-14-001
).
8
.
Anticipated economic impact of implementing the rule
(note if the rule is likely to have a significant economic impact on small businesses)
:
The Department
expects
minimal
economic impacts
as a result of this rule
. In fact,
t
here will be
economic relief for
permittees currently required to monitor to meet state and federal regulations independently
.
The proposed rule will change the pathogen indicator
and may change the
illness
rate
.
This rule is not likely to have a significant economic impact to small businesses.
Changing the pathogen indicator from fecal coliform to
E. coli
may impact
dischargers
. The most likely source for additional costs is changes in the test method used for effluent monitoring.
P
ermitted facilities on inland waters
will need to switch to a
different analytical method
for
effluent
monitor
ing. However, t
he costs incurred to shift
between indicators should be minimal because analytical costs are similar and
E. coli
testing is readily available in the marketplace.
P
ermitted facilities
discharging to
the Great Lakes
will likely encounter reduced
costs
because
many
will no longer be required to monitor for both fecal coliform and
E. coli
.
Because fecal coliform and
E. coli
are indicators of fecal contamination and disinfection strategies are designed to kill or inactivate organisms that cause
disease, it is unlikely that facilities will need to alter their disinfection strategies to meet the new limits.
The
current
monitoring
information
fr
om
dischargers to the Great Lakes indicate
s
that
the change in criteria should have little or no effect on permit compliance
.
The economic impact of this rule package is dependent on the illness rate selected.
Selection of the higher risk level is consistent with the status quo and is not likely to economically impact
dischargers
, communities, and the State. Selection of the lower risk level is more protective than the status quo and may alter effluent limits, impaired waters listings, future TMDL development, and beach advisories
.
As such, additional work will be completed during rule development to evaluate the economic impact of the risk level selection.
No state has selected the lower risk level.
9.
Anticipated number, month and locations of public hearings:
The Department anticipates holding
2
public
hearings in the month of
December
,
2016
.
Hearing cities will be:
Madison and Wausau or Eau Claire (or other as appropriate)
.
The Department will hold these hearings in
these
locations
to
receive input from affected parties based in the Madison area and at a centrally located city in the state.
Contact Person:
Sarah Yang
Environmental Toxicologist
Bureau of Water Quality
Wisconsin Department of Natural Resources
608-266-9262
