The state of Wisconsin, with significant contributions by stakeholders, has developed a package of innovate new rules to control phosphorous pollution from point and nonpoint (runoff) sources. Attorney Bill Davis of the Environmental Law and Policy Center played a key role in developing and advancing these rules through the administrative process. Bill is ELPC’s Clean Water Program Manager, working out of their Madison, Wisconsin office. I’ve known Bill for over ten years, as he previously served as the Executive Director of the State Environmental Leadership Program and the Executive Director of Wisconsin’s Environmental Decade (now Clean Wisconsin), and I asked him to write a guest post on this significant policy victory to address a widespread water quality problem.
Across the Great Lakes region – and the country – nutrient pollution in our water is a major problem. Nutrient pollution causes a range of impacts, including toxic algae blooms that have killed pets and the “Dead Zone” in the Gulf of Mexico from the polluted Mississippi River and tributaries. Unfortunately, current law offers few tools to address much of this pollution because the Clean Water Act does not reach nonpoint pollution. However, given the severity of the issue, the US EPA has encouraged states to adopt numeric water quality criteria for nutrients and has recently promulgated such standards for Florida. As a result, more states are beginning to address this problem.
Wisconsin has recently taken action to control phosphorous pollution by adopting two rules – one that sets water quality criteria for Wisconsin waters (NR 102) and an implementation rule (NR 217) that translates the criteria to permit limits. (The final rules have not yet been published – see this document from the Wisconsin Natural Resources Board with the draft rules, comments, and additional info.) The implementation rule has tremendous potential as a useful tool to address both point source pollution and nonpoint (runoff) pollution, which is not directly regulated under the Clean Water Act. Both rules have advanced through Wisconsin’s administrative process and await publication and approval by the US EPA, which we expect by the end of this year.
To give a sense of the novelty of the Wisconsin approach, the Wisconsin Farm Bureau, municipal wastewater treatment plants, and the major environmental organizations (including ELPC) all testified in favor of these rules. Why? I believe the primary reason is the Adaptive Management section of the implementation rules (NR 217). This provision allows point sources in watersheds impaired by nonpoint phosphorous pollution to meet their permit limits by contracting with nonpoint sources in the watershed to reduce their phosphorous loads. This option [essentially a market/trading program to allow more cost efficient ways to reduce pollution] is very attractive to regulated point sources. For point sources, contracting with nonpoint sources to reduce their pollution is significantly less expensive than adding end-of-pipe treatment technology like filtration. Further, regulated point sources are no longer being singled out to solve the nutrient pollution problem, and the agriculture community gets a potential new source of revenue for pollution reduction. For the public, environmental groups, and state DNR, the new rules create an enforceable mechanism to address nonpoint sources which are the dominate source of nutrient pollution in many of watersheds. Given the political realities across the region, solutions that engender this kind of broad support have the best chance of long-term success.
Wisconsin is now working on guidance for NR 217 and as always, the devil is in the details. There are many issues that need to be resolved, such as the necessary proximity between the point sources and nonpoint sources, the specifics of the pollution reduction plans and contracts the points sources must prepare, and the monitoring requirements and margins of safety. We know other states are interested in this approach, and will continue our hard work to make sure the Wisconsin package is a good example and model for other states.
