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EPA Approves Wisconsin Multi-Discharger Variance for Total Phosphorous

On February 6, 2017, the U.S. Environmental Protection Agency (EPA) approved Wisconsin’s Multi-Discharger Variance (MDV) for Total Phosphorous. The MDV establishes an additional and less-costly compliance option for eligible point sources seeking relief from burdensome phosphorous discharge limitations. The EPA’s approval of the MDV will last for a period of 10 years, but may be extended if the Wisconsin Department of Natural Resources (WDNR) requests and receives an extension. In a draft version of its MDV Justification submission for the EPA, WDNR indicated that an extension will likely be necessary.

Phosphorous Standard

In 2010, the WDNR promulgated rules creating a phosphorous standard intended to reduce the amount of phosphorous entering the state’s watersheds. Following approval by the EPA, those rules became the federally enforceable water quality standard upon which discharge limits for point sources are calculated. Complying with the new discharge standards proved to be an exceedingly difficult challenge, and many facilities sought approval for individual variances. As the number of facilities seeking variances increased, the state sought to streamline the process, which resulted in the development and passage of 2013 Wis Act 378

Act 378, which became effective in 2014, directed the WDNR and the Wisconsin Department of Administration to investigate the costs associated with attaining the water quality standard for phosphorous and its impact on the state’s economy. That study revealed that compliance with the phosphorous standard would result in “substantial and widespread adverse social and economic impacts to the state,” prompting WDNR to request EPA approval for this MDV.

Compliance Options

The MDV extends the timeline under which point sources must comply with phosphorous limits, including those based on a federally approved total maximum daily load (TMDL). To be eligible to apply for an MDV, a point source must be an existing facility that would require a major facility upgrade to comply with its phosphorous water quality-based effluent limitations (WQBEL). If a facility meets the eligibility criteria and requests an MDV, the facility’s Wisconsin Pollution Discharge Elimination System (WPDES) permit will, upon approval, be modified or reissued with two important conditions. First, each point source must reduce its phosphorous load each five-year permit term. The final MDV approved by the EPA includes the following default limitations for each permit period:

  • Permit term 1: 0.8 milligrams per liter (mg/L)

  • Permit term 2: 0.6 mg/L

  • Permit term 3: 0.5 mg/L

  • Permit term 4: Phosphorus WQBEL

These default limitations may be adjusted if attainment is not feasible. Moreover, every five years the WDNR will review these interim phosphorous limitations to 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.

A point source receiving an MDV must also implement a watershed improvement project to help reduce nonpoint source phosphorous pollution. These projects must include a binding, written agreement with either WDNR or other third parties to offset the amount of phosphorous by which the point source’s discharge exceeds the target value. If a point source is located in a watershed for which a TMDL has been approved, its target value is the phosphorous discharge limitation included in its WPDES permit pursuant to the TMDL. If the point source is located in a watershed not subject to a TMDL, the target value is .02 mg/L. Alternatively, a point source may elect to pay its county Land Conservation Department $50 per pound of phosphorous discharged in excess of the target value. The per pound payment will be adjusted annually in proportion to any changes in the U.S. consumer price index for urban consumers. However, the per pound payment in effect when the permit is issued will apply for the full permit term.

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VII, Number 39

About this Author

Todd Palmer, Michael Best Law Firm, Environment and Natural Resources Attorney
Partner, Practice Group Chair

For more than 25 years, Todd has helped numerous clients remain in compliance with all aspects of the complex and dynamic Clean Air Act regulatory program. His extensive knowledge of and experience with Clean Air Act matters includes obtaining air emission control permits, planning future activities to minimize the expense of regulation, and the defense of allegations that a company may have violated Clean Air Act requirements.

David A. Crass agribusiness law attorney Michael best Law Firm
Partner; Industry Group Chair, Agribusiness, Food & Beverage

David’s practice sits squarely at the intersection of the food-water-energy nexus. His work in the areas of environmental, regulatory, agricultural production, manufacturing and distribution, and energy projects gives him the depth of experience necessary to counsel clients who will be feeding and powering a projected global population of nine billion people by 2050—at a time when resource scarcity and consumer confidence require an ongoing commitment to stewardship and sustainability.

David grew up on a dairy farm in Wisconsin and maintains a presence in Michael Best’s Madison, WI...

Leah Hurgten Ziemba, Michael Best Law Firm, Agribusiness and Energy Attorney
Partner, Industry Group Chair

Leah takes a big-picture approach in advising clients as they face challenges on environmental, food safety, and regulatory compliance issues. She draws on experience gained in cases involving the EPA, FDA, and other public agencies.

Leah’s success as a counselor, litigator and negotiator reflects her combination of subject matter expertise, industry knowledge, and creativity. Her work includes:

  • Investigating, assessing, and remediating vapor intrusion issues at sites with historic solvent contamination...

J. Alexander Hayes, Michael Best Law Firm, Government Relations Attorney
Senior Associate

Alex provides clients with a full range of government relations, lobbying, strategic planning and public relations services. Drawing on his legal knowledge and experience, he assists in the development and implementation of federal legislative and regulatory strategies in order to help clients achieve their strategic business goals, and works with them to identify opportunities for constructive government engagement.

Prior to joining Michael Best, Alex worked with the Colorado Water Trust on matters involving water rights and stream flow....