September 2, 2014

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New Phosphorus Compliance Legislation Introduced in Wisconsin

On January 24, 2014, Wisconsin State Senators Cowles and Farrow, and State Representative Loudenbeck introduced legislation that creates a new option for point-source dischargers in Wisconsin complying with the state’s strict numeric phosphorus water quality standard.

Current law provides a point source three options to comply with phosphorus discharge limits: 1) install new technology to remove more phosphorus from wastewater flows, 2) utilize adaptive management or water quality trading, or 3) seek a traditional variance. The proposed legislation, LRB 3079, creates a fourth option for point source dischargers: opt into a legislated variance. Point sources that choose to opt into the legislated variance would be required to reduce the phosphorus they discharge to the extent practical, while also paying fees that will be directed to counties to use in working at the local level to reduce nonpoint contributions to Wisconsin’s surface waters.

This is what permit holders need to know about the legislation:

  • The bill does not change the existing phosphorus water quality standard; it just creates a new option for compliance.
  • A permittee that opts into the legislated variance option would not need to make an individual showing of hardship as required for a traditional variance. Instead, the State of Wisconsin would demonstrate to the Environmental Protection Agency (EPA) that the phosphorus standard creates a statewide hardship.
  • If they choose to enroll, permittees will be automatically allowed into the legislated variance as long as they comply with the variance terms.
  • Under the terms of the legislated variance, participants must:
    • Reduce phosphorus concentrations to an interim limit for four permit terms. If the interim limit cannot be met without installing new equipment, a permittee must hold phosphorus levels at its best achievable level.
    • Pay $50/lb of phosphorus for the difference between the .2mg/L target value and the permittee’s actual discharge. This incentivizes point sources to achieve the most reductions possible from their existing technology.
  • The money will be paid to the Wisconsin Department of Natural Resources (WDNR) and distributed to counties to fund non-point source phosphorus reduction programs, with oversight by the WDNR.
© MICHAEL BEST & FRIEDRICH LLP

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