March 25, 2010Client Alert

Public Hearings on New Phosphorus Discharge Limits

The Natural Resources Board recently authorized Wisconsin Department of Natural Resources (“DNR”) staff to move forward with public hearings on a proposed rule that would set numeric phosphorous water quality standards and establish procedures for implementing those standards through Wisconsin Pollutant Discharge Elimination System (“WPDES”) permits. The new standards will likely affect, in some fashion, every municipality, food processor, industrial discharger and farmer that holds a WPDES permit in the State. A list of public hearing dates and locations is provided below; the deadline to submit written comments to DNR is April 30, 2010.

According to DNR, the new limits have been proposed in part because Wisconsin’s lakes, rivers, and streams have seen increased phosphorus-related problems in recent years, such as algae blooms. Wisconsin currently has 172 lakes and streams that are considered “impaired” under the federal Clean Water Act due to excessive phosphorus levels. The U.S. Environmental Protection Agency (“EPA”) has urged states to adopt tougher, more precise limits on phosphorus levels. A Notice of Intent to sue EPA for failing to timely implement numeric phosphorus limits was filed by environmental groups in November 2009.

While supporters assert that the proposed rule would lead to cleaner, safer Wisconsin waters, the new limits would come at a substantial cost to industry and citizens of the State. DNR’s own analysis puts the estimated cost of compliance for industrial dischargers at $440 million, and somewhere between $300 million and $1.13 billion for municipal wastewater treatment systems. Pursuant to federal law, DNR is also required to develop and implement Total Maximum Daily Loads (“TMDL”s) for impaired waterways. The practical effect of a TMDL is to set the maximum pollutant load for an impaired waterway or watershed, and allocate that maximum load / discharge among all permitted dischargers in that watershed. TMDLs typically operate to further reduce a facility’s permitted discharge. The proposed numeric phosphorus limits, coupled with DNR’s development of TMDLs, has lead observers to expect actual economic impacts of the proposed rules to be much higher than DNR estimates.

Possibly due to the upcoming Governor’s race and the prospect of a new administration, DNR staff indicated its intent to finalize this rulemaking very quickly, with a final rule expected to be adopted in June 2010.

All public hearings begin at 1:00 pm:
April 15: Rhinelander: Quality Inn, 668 West Kemp Street
April 20: Green Bay: Green Bay City Hall, Council Chambers, Room 203, 100 North Jefferson Street
April 21: Oconomowoc: Olympia Resort & Conference Center, Crown Room, 1350 Royale Mile Road
April 27: Eau Claire: Ramada Inn, Lower Ballroom, 205 South Barstow Street

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