Section NR 217.16 - Relationship of WQBELs and TMDL based limitations(1) In addition to a water quality based effluent limitation calculated pursuant to s. NR 217.13, the department may derive a water quality based effluent limitation for phosphorus consistent with the wasteload allocation and assumptions of a US EPA approved TMDL that is designed to achieve water quality standards in ch. NR 102. This TMDL based limitation may be included in a permit in addition to, or in lieu of, the water quality based limitation calculated under s. NR 217.13. When deciding whether to use a TMDL based limit as a substitute for the limitation calculated under s. NR 217.13, the department shall consider the following factors: (a) The degree to which nonpoint sources contribute phosphorus to the impaired water;(b) Whether waters upstream of the impaired waters are meeting the phosphorus criteria; and(c) Whether waters downstream of the impaired water are meeting the phosphorus criteria.(2) If the phosphorus limitation based on an approved TMDL is less stringent than the water quality based effluent limitation calculated in s. NR 217.13, the department may include the TMDL based limit in lieu of the limit calculated in s. NR 217.13 if the limit calculated under s. NR 217.13 has not yet taken effect. If the department includes the TMDL based limitation for phosphorus in the WPDES permit in lieu of the limit calculated in s. NR 217.13, the TMDL based limit may remain in the permit for up to two permit terms to allow time for implementation of the TMDL, or the implementation period specified in the TMDL, whichever is less. The department may include a schedule of compliance to achieve a TMDL based limit if the department determines a schedule of compliance is necessary. If after two permit terms, the department determines the nonpoint source load allocation has not been substantially reduced, the department may impose the more stringent water quality based effluent limitation calculated under s. NR 217.13, or may include the TMDL based limitation for an additional permit term if the department determines there will be significant nonpoint source load reductions within the upcoming permit term. If the department decides to remove a TMDL based phosphorus limit from a permit and instead include a more stringent water quality based phosphorus limit in the permit calculated under s. NR 217.13, the department may provide a schedule of compliance for the more stringent limit if the department determines additional time is needed for the permittee to comply with the revised limit. Such schedules shall require compliance as soon as possible, but in no case no more than five years from the date that the permit is reissued or modified to include the revised effluent limitations.(3) If a phosphorus water quality based limit calculated under s. NR 217.13 has already taken effect in a permit, the department may replace the limit with a less stringent TMDL based limit, if allowed pursuant to antidegradation procedures in ch. NR 207. Note: The TMDL based limitation may be less stringent than the water quality based effluent limitation calculated under s. NR 217.13 in cases where nonpoint sources are the significant phosphorus sources responsible for the impairment.
(4) If the phosphorus limitation based on an approved TMDL is more stringent than the water quality based effluent limitation calculated under s. NR 217.13, the department shall include the more stringent TMDL based limitation in the WPDES permit.Wis. Admin. Code Department of Natural Resources § NR 217.16
CR 10-035: cr. Register November 2010 No. 659, eff. 12-1-10.