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Phosphorus Variance Bill Becomes Wisconsin Law

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Today, Governor Walker signed into law the “Clean Waters, Healthy Economy Act.” The Act requires the Department of Administration (“DOA”), in consultation with the Department of Natural Resources (“DNR”), to consider whether it is feasible for currently permitted point source dischargers to comply with water quality-based effluent limits (“WQBELs”) for phosphorus. Under the Act, that will depend on whether compliance would require major facility upgrades that would cause substantial and widespread adverse social and economic impacts on a statewide basis. If DOA and DNR make that finding, the bill provides for a statewide variance to the phosphorus WQBELs for the affected sources. EPA must also approve the variance. Eligible point sources that opt in to the variance would be required to reduce the phosphorus they discharge to the extent practical and to pay fees that will be directed to counties for use in reducing phosphorus contributions to surface waters from nonpoint sources. Eligible sources applying for the variance must also accept interim phosphorus effluent limitations that are reduced in successive permit terms, and must achieve compliance by the end of the fourth permit term for which the variance is approved (generally within 20 years). The bill requires DOA and DNR to review the initial determination every five years. If the agencies find that the initial determination is no longer accurate, the variance terminates.

Should you have questions about potential eligibility for the variance, please contact Tom McElligott at thomas.mcelligott@quarles.com / (414) 277-5531, Dave Strifling at david.strifling@quarles.com / (414) 277-5527, or your Quarles & Brady attorney.

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