Thomas P. McElligott, Retired Partner

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Thermal Discharge Final Rules

Environmental Law Update Thomas P. McElligott, Raphael F. Ramos

New rules regulating thermal discharge to Wisconsin's surface waters will take effect later this year, likely by July 1, 2010. The new rules give the Wisconsin Department of Natural Resources ("DNR") broad authority to impose thermal effluent limitations for the first time since 1979.[1]

The Wisconsin Natural Resources Board adopted the revisions to Wisconsin's thermal water quality standards, Wis. Admin. Code NR § 102, and point source implementation procedures, Wis. Admin. Code NR § 106, on January 27, 2010. In compliance with the procedural requirements of Wis. Stat. Ch. 227, DNR submitted the rule package to the Wisconsin Legislature on February 5, 2010. Because neither the Senate Environment Committee nor the Assembly Natural Resources Committee took any formal actions on the rule package, the rules will take effect following publication in the Wisconsin Administrative Register. DNR anticipates that the rules will be published in June 2010 and will take effect July 1, 2010.

As noted by DNR, the impact of the proposed rule on regulated facilities will be varied - ranging from more stringent temperature limits to no limits at all. For existing dischargers, we expect that DNR will assess the impact of the new rules in the permit renewal process. As a general proposition, facilities discharging into water bodies with high rates of flow will typically have an advantage over those that discharge into low flow or standing waters, because water bodies with a high rate of flow can more easily assimilate heat. We anticipate that a significant number of dischargers may have no practical means of complying with limitations derived using the "default" provisions of the new rules. Dischargers in that situation will need to pursue some of the "off-ramps" available in the rules, such as the use of site-specific data or a site-specific variance.

DNR is currently developing guidance on the rule package. For more information, please contact Tom McElligott at (414) 277-5531 / [email protected], Raphael Ramos at (414) 277-5539 / [email protected] or your Quarles & Brady attorney.

[1] In 1979, the Wisconsin Supreme Court struck down then-existing thermal discharge rules and left the DNR with few options for addressing effluent temperature. WEPCO v. State Natural Resources Board, 90 Wis.2d 656, 280 N.W.2d 218 (1979).

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