Thomas P. McElligott, Retired Partner

Publications & Media

Wisconsin Statewide Phosphorus Variance Moves Forward

Environmental Law Update Thomas P. McElligott, David A. Strifling

On May 5, the Wisconsin Department of Administration ("DOA") issued a preliminary determination that compliance with state-imposed phosphorus water quality based effluent limits is not feasible because it would cause substantial and widespread adverse social and economic impacts. Although DOA's determination applies at the statewide level to multiple categories of dischargers, it requires individual facilities to demonstrate that compliance with phosphorus water quality standards by that facility is impossible without major facility upgrades.

If finalized, DOA's determination would fulfill the first of two prerequisites set by the Wisconsin Legislature in April 2014 when the Legislature authorized the creation of a statewide, multi-discharger variance from Wisconsin's phosphorus water quality standards. The remaining hurdle is approval of the variance by the United States Environmental Protection Agency ("EPA"). Upon becoming effective, the statewide variance will significantly extend the timeline for covered point sources to comply with stringent phosphorus limits in exchange for two commitments.

First, point sources must agree to stepwise reductions of phosphorus discharges in successive permit terms. Second, point sources must pay $50 per pound of phosphorus discharges over target values, to be used by Wisconsin counties for projects that will address nonpoint sources of phosphorus. Point sources may apply for coverage under the variance during several discrete windows of time, including upon application for permit reissuance.

DOA and the Wisconsin Department of Natural Resources ("DNR") have opened a public comment period on DOA's economic impact study and preliminary determination, and will hold a public informational hearing on May 12 in Wausau. Public comments may also be submitted in writing. If DOA's determination is finalized, DNR will submit the variance to EPA for approval.

  • The Notice of Preliminary Determination, public hearing, and public comment process is available here.
  • The full Preliminary Determination is available here.
  • The full Economic Impact Analysis is available here.
  • An addendum to the Economic Impacts Analysis is available here.

Should you have questions about the potential impact of these developments on your operations, please contact Tom McElligott at [email protected] / (414) 277-5531, Dave Strifling at [email protected] / (414) 277-5527, or your Quarles & Brady attorney.

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