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  • June 20, 2017

    Implementing Wisconsin’s New Multi-Discharger Variance for Phosphorus

    The Department of Natural Resource’s newly approved multi-discharger variance for phosphorus provides another option for municipal publicly owned treatment plants and other point source dischargers. Vanessa D. Wishart outlines the new policy and its implementation.

    Vanessa D. Wishart

    In February, the U.S. Environmental Protection Agency (EPA) approved the Wisconsin Department of Natural Resource’s (DNR) Multi-Discharger Variance (MDV) for phosphorus.

    The MDV provides a new variance option for municipal publicly owned treatment plants (POTW), among other point source dischargers.

    The New Variance Option

    The MDV provides permittees with the opportunity to participate in a statewide program that gives point sources facing restrictive phosphorus limits a time extension for compliance in exchange for implementation of a watershed project.

    Vanessa D. Wishart Vanessa D. Wishart, U.W. 2011, is an associate in Stafford Rosenbaum's environmental and government law practice areas in Madison, where she concentrates her practice on water, wastewater, and remediation and redevelopment issues.

    Permittees can implement a watershed project through cooperation with the DNR or a third party, or by paying counties a fee of $50 per pound of phosphorus in the permittee’s discharge that exceeds its target value.

    Qualifying for the MDV

    In order to qualify for the MDV, a POTW must be an existing facility that requires a major facility upgrade to comply with its phosphorus limit. This means a permittee must establish that it cannot achieve its limits through another means such as optimization, adaptive management, or water quality trading.

    A POTW must also meet certain primary and secondary indicators to establish that compliance with phosphorus limits would have a substantial economic impact. The primary screener is treatment cost as a percentage of median household income (MHI) in the community serviced by the POTW.

    The DNR uses these secondary screeners for the county in which the POTW is located:

    • transfer receipts as a share of total personal income;
    • jobs per square mile;
    • population change;
    • net earnings by place of residence;
    • job growth; and
    • capital costs as a share of total wages.

    POTWs with an MHI of less than 1 percent will not be eligible to participate in the MDV. Where MHI is between 1 to 2 percent, the county in which the permittee is located must have a score of at least three secondary indicators in order for the permittee to qualify. Where MHI is more than 2 percent, the county in which the permittee is located must have at least two secondary indicators. Permittees in counties with less than two secondary indicators are not eligible regardless of MHI.

    Applying for the MDV

    POTWs can apply for the MDV in the following circumstances:

    • As part of a permit renewal/reissuance.
    • Within 60 days of a DNR reissuance of a permit.
    • During the permit term if the permit was reissued containing a water quality-based effluent limit (WQBEL) for phosphorus prior to April 25, 2014. (Permit modification required in this case).
    • When there is an existing permit with a compliance schedule that requires selecting a compliance option, the permittee may opt for the MDV option as part of that process.

    After a POTW has applied for the MDV, the DNR has 30 days to review the variance request and issue a final decision. If the DNR does not grant approval within 30 days, the variance is deemed approved and incorporated into the permit as a modification or as part of the reissuance.

    Limits of Phosphorus Load Still Required

    POTWs opting for the MDV are still required to reduce their phosphorus load each permit term.

    As a general rule, the required limits are:

    • Permit term 1: 0.8 mg/L
    • Permit term 2: 0.6 mg/L
    • Permit term 3: 0.5 mg/L
    • Permit term 4: Phosphorus limit compliance

    These limits may be adjusted if they are not achievable. However, interim limits must result in achievement of the “highest attainable condition” for the receiving waterbody. This means that in some circumstances the DNR may institute a limit that is more restrictive than those listed above.

    Meeting the Load Limit

    The MDV requires participating permittees to implement a watershed project that offsets the difference between a POTW’s current actual annual phosphorus load and a target value. The target value is either the total maximum daily load (TMDL) where one has been approved or a default of 0.2 mg/L in the absence of a TMDL. A POTW can meet this offset requirement a number of ways, including through an agreement with the DNR or a third party to implement a watershed project.

    The POTW can also meet this requirement by making payments in the amount of $50 per pound of phosphorus above target value to the county in which the POTW is located. The county must then use that money to implement a watershed project to reduce phosphorus loading.

    DNR Review Process

    The DNR will review the MDV on a number of different occasions. Permit-specific review occurs at each permit reissuance, wherein the DNR will evaluate whether the MDV and related permit terms continue to be appropriate for a particular POTW.

    The DNR will also review annual plans and reports for watershed projects. The DNR will also conduct triennial program level reviews, to evaluate whether the MDV continues to be appropriate at a statewide level, based on new information relevant to current technology and economic conditions.

    The MDV expires Feb. 5, 2027, and permit terms and conditions that reflect the MDV cannot extend beyond this expiration date. However, the DNR may seek EPA approval to extent the MDV for a second ten-year term.

    For additional information on MDV implementation, visit DNR’s phosphorus page.

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    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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