Thomas P. McElligott, Retired Partner

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Upcoming Hearings on Phosphorus Water Quality Rule

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

Hearings will soon be held on the Wisconsin Department of Natural Resources' ("DNR") proposed phosphorus rule revisions, which would establish phosphorus water quality criteria and associated permit implementation procedures. These rules represent a significant shift away from the technology based standards currently in Wis. Admin. Code Ch. NR 217 to a water quality based approach. For many dischargers, the new rule would likely result in far more stringent effluent limitations. Hearings on the rules are set for the following dates:

  • April 15 - Quality Inn, 668 W. Kemp St., Rhinelander at 1 p.m.
  • April 20 - Green Bay City Hall, Council Chambers, Room 203, 100 N. Jefferson, St. Green Bay at 1 p.m.
  • April 21 - Olympia Resort and Conference Center, Crown Room, 1350 Royale Mile Rd., Oconomowoc at 1 p.m.
  • April 27 - Ramada Inn, 205 S. Barstow St., Eau Claire at 1 p.m.

The rules were proposed by DNR after several environmental organizations[1] filed a Notice of Intent to Sue the United States Environmental Protection Agency ("EPA"). The Notice was based on DNR's failure to adopt water quality standards for phosphorus and nitrogen. The proposed rules were developed with considerable oversight from EPA.

The proposed rule would revise Wis. Admin. Code Chs. NR 102 and NR 217. As proposed, the rule has two parts. First, the rule would establish phosphorus water quality criteria for rivers, streams, various lakes, reservoirs, and the Great Lakes. Second, the rule would establish procedures for determining and incorporating phosphorus water quality based effluent limitations into Wisconsin Pollutant Discharge Elimination System permits. As compared to the current technology based approach in NR 217, the water quality based approach would likely result in much more stringent effluent limitations. Even by DNR's estimate, the costs of compliance could be significant - as high as $1.13 billion for municipalities and $440 million for the private sector.

DNR will accept comments on the proposed rules at the upcoming hearings. In addition, written comments on the proposed rules may be submitted via e-mail to [email protected] or via U.S. mail addressed to Jim Baumann at DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921. The deadline for comments is April 30, 2010. Copies of the proposed rule revisions and supporting documents may be accessed through the links below.

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] The organizations include the Clean Water Action Council of Northeastern Wisconsin, Gulf Restoration Network, Milwaukee Riverkeeper, Prairie Rivers Network, River Alliance of Wisconsin, Sierra Club and Wisconsin Wildlife Federation.

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