Following the “Year of Clean Drinking Water” declared by Gov. Tony Evers in 2019, the statewide focus on water quality is set to continue into 2020.
In this current legislative session, a host of proposals concerning water quality are before the state Legislature, some of which would affect the processes for establishing certain types of water quality standards in Wisconsin. Three of these are summarized below.
LRB-4806/1: Public Comment Period for Establishing Groundwater Standards
This bill is one of 13 proposals generated by the Speaker’s Task Force on Water Quality, which held 14 public hearings around the state in 2019.1
The Task Force released its report in early January, and its recommendations include the creation of a new state Office of Water Policy, increased funding for county conservation staff, and additional assistance to farmers for conservation practices and to a grant program for landowners who must replace, reconstruct, or treat contaminated wells, among others.2
Leslie Freehill, UW 2015, is an associate attorney with Pines Bach LLC in Madison, where she concentrates her practice on civil litigation, environmental law, civil rights, and regulatory matters.
Of the 13 proposals, LRB-4806 stands out for what would be a substantial change in the process of establishing health-based groundwater standards. Currently, individuals or agencies may submit the name of a substance with potential to affect groundwater quality to the Department of Natural Resources (DNR), which categorizes the substance into one of three categories based on level of threat.3 For those substances of potential health concern, the DNR and the Department of Health Services (DHS) collaborate to establish enforcement standards and preventive action limits.4
LRB-4806 inserts a mandatory public comment period into DNR’s initial process for categorizing the substance, and another while DHS considers its recommendation for a health-based enforcement standard.5 The bill requires each agency to retain all written comments submitted during that public comment period and to consider them in determining whether to modify its recommendation.6
CR 19-093: Establishing a General Process for Developing Site-specific Criteria for Phosphorus
The DNR has presented several rulemaking packages to the Legislature that would affect how some water quality standards are established for surface water bodies throughout the state.
The first of these, CR 19-093, is intended to provide clarity in the process of establishing site-specific phosphorus criteria for water bodies when applicable statewide criteria are either too protective or not protective enough.7
Currently, NR chapter 102 provides only that a site-specific criterion may be adopted where “site-specific data and analysis using scientifically defensible methods and sound scientific rationale demonstrate a different criterion is protective.”8 CR 19-093 establishes a detailed procedure and a methodology for developing phosphorus SSC.
A second proposed rule establishes a separate process for Petenwell Lake located in Wood, Juneau, and Adams counties, Castle Rock Lake located in Adams and Juneau counties, and Lake Wisconsin located in Columbia and Sauk counties.9
CR 19-014: Incorporating Federal Recommendations Into Statewide Bacteria Surface Water Quality Criteria
Another rulemaking package from the DNR makes Wisconsin’s recreational water quality criteria consistent with federal recommendations, which were updated by the Environmental Protection Agency (EPA) in 2012.10
Recreational water quality criteria are used to establish bacteria limits for permittees, assess waterbodies for bacteria-caused impairments, and develop restoration plans for bacteria-impaired waters. The purpose of the limits is to protect people from waterborne pathogens like E. coli while recreating in and on water.11
The 2012 EPA criteria are recommended for all surface waters that support primary recreational uses. CR 19-014 revises Wisconsin’s recreational water quality criteria to conform to EPA recommendations, which would then require DNR to establish procedures for enforcing these criteria and imposing WPDES permit conditions to meet them.12
Although the fates of these and other proposals from the Speaker’s Task Force on Water Quality and the DNR are yet to be determined, environmental law practitioners can expect to see further developments in water quality laws and regulations in the future as stakeholders continue to spotlight these issues around the state.
1 Report of the Speaker’s Task Force on Water Quality, Jan. 8, 2020.
3 Wis. Stat. § 160.05.
4 Wis. Stat. § 160.07(1).
5 2019 AB 794.
7 See WT-17-12.
8 Wis. Admin. Code § NR 102.06(7).
9 See WY-09-18.
10 See WY-17-15.