BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
RECEIVED
CLERK’S OFFICE
BOARD
OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY GOVERNING
)
SEP
152005
SOUTHERN ILLINOIS UNIVERSITY,
)
TE
OF
ILLINOIS
EDWARDSVILLE
I)
PoI~ion
Control Board
Petitioner,
)
)
v.
.
)
PCB 02-105
)
(NPDES Permit Appeal)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
Dorothy Gunn, Clerk
Joel A. Benoit
Illinois Pollution Control Board
MOHAN, ALEWELT, PRILLAMAN & ADAMI
James R. Thompson Center
First ofAmerica Center
Suite
11-500
1
N. Old Capitol Plaza,
Ste. 325
100 West Randolph Street
Springfield,
IL 62701
Chicago, 11. 60601
Kim L. Kim
Carol Sudman
Southern Illinois University Edwardsville
Hearing Officer
Office of the General Counsel
fllinois Pollution Control Board
Rendleman Hall, Room 3311
1021 N. Grand Ave.
East
Edwardsville, IL
62026-1019
P.O. Box
19274
Springfield, IL
62794-9274
PLEASE
TAKE
NOTICE
that
I have
today
med with
the
Office
of the
Clerk
of the
Pollution
Control
Board
an. original
and
four
(4)
copies
of the
AGENCY’S
MOTION
FOR AND
MEMORANDUM
OF
LAW
IN
SUPPORT
OF RECONSIDERATION of the Illinois Environniental
Protection Agency, a copy of which is herewith served upon you.
ILLINO~~DNMENTAL PROThCFION AGENCY
By:
—A
Sanjay K. Sofat, Assistant Counsel
Division of Legal Counsel
Dated:
September
14, 2005
Illinois Environmental
Protection Agency
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS
FILING PRINTED
ON RECYCLED PAPER
BEFORE
THE ILLINOIS POLLUTION
CONTROL
CLERK’~
OFFICE
SEP
152005
STATE OF ILUNOIS
pollution Control Board
)
)
Petitioner,
)
v.
)
PCB 02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AGENCY’S
MOTION FOR RECONSIDERATION
NOW COMES the Respondent,
Illinois Environmental Protection Agency
(“Illinois EPA” or
“Agency”) by and through its attorney, Sanjay K. Sofat, Assistant
Counsel and Special Assistant Attorney
General, pursuant to 35
III. Adm. Code
101.520,
hereby submits This Agency’s
Motion for Reconsideration to the Illinois Pollution
Control Board (“Illinois PCB” or “Board”).
The Agency respectfullyrequests
the Board
to
RECONSIDER its’
decision on the issue of interpreting Section 302.211(e) to apply
only to rivers.
In support of its Motion, the Agency states
as follows:
1.
On May 6, 2002, the Southern
Illinois University at Edwardsville (“SIUE”)
appealed the terms and conditions of its permit issued by the Agency on January
2,2002.
BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY GOVERNING
SOUTHERN ILLINOIS UNIVERSITY,
EDWARDSVILLE
1
2.
TheAgency included Special Conditions 2 and 3
in
SIUE’s NPDES permit to
comply with the Illinois Environmental Protection Act (“Act”) and
the Board
regulations.
3.
Special Conditions 2.A and 2.B
in
SITJE’s permit are identical
in language to
Sections 302.211(d) and (e) ofthe Board regulations,
respectively.
4.
SlOE raised the following issues for the Board’s review:
i) SIUE’s discharge
does not have to meet the temperature requirements of35
Ill.
Adm.
Code
302.211(d) and (e) because Tower Lake is man-made and has no natural
temperature; ii) As several permit requirements
apply to rivers as opposed to
lakes, they are not applicable to
SIUE; iii) SIUE’s permit provides no monitoring
points in Tower Lake;
and iv) The monitoring requirements
for the permit are
inconsistent.
Board order at
1.
5.
The Agency and SIUE filed their cross motions for summaryjudgment on April
26, 2005.
6.
On August
10, 2004, the Agency received the Board’s order dated August 4,
2005,
granting SIUE’s motion
for summaryjudgment in part and denying it in
7.
The Board also granted the Agency’s cross-motion for summary judgment in part
and denied it in part.
8.
The Board affirmed the Agency’s decision to
incorporate Special Conditions 2.A
and
3
into SIUE’s permit.
9.
Regarding Special Condition
2.B, the Board ordered the Agency to remove that
permit condition, and any reference to
Section 302.211(e) in
SlOE’s permit.
2
10.
Special Condition 2.B,
which is identical
in
language to
Section 302.211(e), has a
narrative portion and
a table containing monthly maxima temperatures.
11.
The Agency argued that Tower Lake is a general use water ofthe
State, and
Section 302.211(e) must be
read to apply to all waters,
not just rivers.
The liberal
reading ofSection 302.211(e) is necessary to ensure
adequate protection of
aquatic life use in waters ofthe
State other than rivers.
12.
Based
on the plain reading ofSection 302.211(e),
the Board concluded that the
thermal standards contained in this
section applied to representative locations
in
the main river only.
13.
The Agency is not asking the Board to
construe “main river” to mean all waters of
the
State.
Rather, the Agency is requesting the Board to
apply the monthly
maxima temperature limits
in the table portion of Section 302.211(e)
to all waters
of the State.
14.
Section 302.211(e) could be
read as follows:
The narrative portion ofSection
302.211(e) discusses the statistical variation that
is allowed at the point of
measurement in
the case of a main river.
The monthly maxima water
temperatures portion ofthe regulation would apply to
all waters ofthe State.
15.
The Board has the authority to read into the Section 302.211(e) language
to
ensure that equal protection is provided to aquatic life in both rivers and
lakes.
16.
The Board
further concluded that, as Section 302.211(d) applies to
all waters of
the State, “interpreting
Section 302.211(e) to apply only to rivers would
not
leave other waters ofthe State unregulated with respect to
thermal standards.”
Board Decision at 13.
3
17.
The Agency believes that Sections 302.211(d) and (e) provide a necessary two-
tierprotection
to aquatic life in waters ofthe
State.
Section 302.211(d) provides
the first
tier protection by
limiting the maximum temperature rise above natural
temperature, and Section 302.211(e) provides the second tier protection by
limiting the monthly maxima watertemperatures.
18.
Reading Section
302.211(e) to
apply only to rivers creates
a gap in the Illinois
thermal standard applicable to waters of the State other than rivers.
19.
Though the requirements of Section 302.211(d) do apply to all
waters of the
State
including lakes, limiting the applicability of Section
302.211(e) to rivers lessens
the protection afforded to aquatic
life in lakes.
20.
The Agency is requesting the Board to apply the monthly maxima temperature
limits portion ofSection 302.211(e) to all waters ofthe State.
4
WHEREFORE, the Agency respectfully requests that the Board to
RECONSIDER its’ decision on the issue ofinterpreting Section 302.211(e) to apply only
to rivers.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
cC
By:~
Sanjay K. Sofat
Assistant Counsel
Special Assistant Attorney General
DATED:
September 14, 2005
1021 North GrandAvenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
5
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAPftERIc’~
OFFICE
SEP
152005
BOARD
OF TRUSTEES OFSOUTHERN
)
pf~l~n0C~ntroiBoard
ILLINOIS UNIVERSITY GOVERNING
SOUTHERNILLINOIS UNIVERSITY,
ED
WARDSVILLE
)
)
Petitioner,
)
)
v.
)
PCBO2-105
)
(NPDES Permit Appeal)
ILLINOISENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
AGENCY’S MEMORANDUM OF LAW IN
SUPPORT OF MOTION
FOR
RECONSIDERATION
NOW COMES the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) by and through its attorney, Sanjay K.
Sofat, Assistant
Counsel
and Spècial~AssistantAttorney General, pursuant to 35
Ill. Adm.
Code
101.520,
hereby submits this Agency’s Memorandum of Law in
Support of Motion for
Rë~ônsideration
to the Illinois Pollution Control Board (“Illinois PCB” or “Board”).
The
Agency respectfully requests the Board to RECONSIDER its
decision interpreting
Section 302.211(e)
to apply only to rivers.
In support, the Agency states as follows:
ARGUMENTS
In construing administrative rules, the same rules that apply to statutory
construction apply.
SIUE v. illinois EPA,
PCB 02-105, at
12 (August 4, 2005).
The first
6
cannon of statutory interpretation is to ascertain and give affect to the legislative intent as
expressed in
the statute.
City ofEast Peoria
v.
Group Five Development
Co.,
87
Ill.2d
42, 46, 57 Ill.Dec.
594, 429 N.E.2d 492 (1981).
The
legislative intent usually appears
from
a
consideration of the statute’s language, which
affords the best means of its
exposition.
Jllinois
Power Company
v. Mahin,
72 Ill.2d
189,
194,21
Ill.Dec.
144,
381
N.E.2d 222
(1979).
A court,
however, is not bound by the
literal language found in
a statute where the
language would defeat the legislature’s obvious
and clearly expressed objective or
purpose.
People v. McCoy,
63
Ill.2d 40, 45, 344 N.E.2d 436 (1976).
Words may. thus,
be modified, altered, or supplied, to obviate repugnancies or inconsistencies from the
legislative intent.
People
v. Bratcher,
63
11l.2d 534, 543, 349 N.E.2d 31(1972)
(emphasis added).
The courts usually read into the meaning of a statutory provision a
qualifying or expanding expression, which is “plainly implied by the general context of
the enactment, which has been palpably omitted and which is essential to prevent the
legislative purpose from
failing
in one ofits
important aspects.”
People
v.
Gibson,
99
III.
App.
3d
615,616,55
III. Dec.
24, 425 N.E.2d 1197
(2w’ Dist.,
1981)
(emphasis added).
Finally, where
two
constructions ofa law are available, the one which would produce
absurd results and render the operation of the law difficult
should be avoided.
Balmes
v.
HIAB-FOCO, A.B.,
105
Ill.App.3d
572, 575,61
I11.Dec.
329, 434 N.E.2d 482
(1982).
The Agency urges the Board to
follow the courts’ reasoning
in
Bratcher, Gibson,
and Balmes
because the limited reading of Section 302.211(e) would create inconsistency
by providing lesser protection
to the aquatic life use in waters ofthe State other than
rivers.
The Illinois Sanitary Water Board originally adopted the Section 302.211(e)
7
language; later the Board incorporated the then-existing language into
its regulations
without any discussion.
See
SWB-4
(1968),
SWB-IO
(1968),
R
70-2
(June 9,
1971).
As
the clear intent ofthe original drafters is not documented anywhere, at the best, one could
only speculate regarding the original intent.
Unlike the adopting opinions for Sections
302.205 and 302.211(j), the adopting opinion for Section 302.211(e) does not specifically
state that Section 302.211(e) was intended only to
apply to rivers.
R71-14
(Dec. 21,
1971).
By reading Section 302.211(e) to only apply to rivers, the aquatic
life in waters of
the State other than rivers would not get protection from the monthly maxima
temperature limits.
Where intent is not clear, the Board has the authority to modify, alter,
or supply words to prevent inconsistencies from the original intent.
Also, the Board
has
the authority to read into the meaning of a regulation a qualifying or expanding
expression to prevent the legislative purpose from failing in one ofits important aspects.
The Agency reads Section 302.211(e) to have
two
distinct and independent
components.
The first component narrates the maximum statistical
variation allowed at
representative locations in the main river.
The second component provides a table
containing monthly maxima temperatures.
The Agency is urging the Board to read this
second component to apply
to all waters ofthe State.
In its August 4, 2005
order, the Board concluded that Section 302.211(e) only
applied to rivers.
The Board further concluded that by interpreting Section 302.211(e) to
only apply to
rivers, it would not leave other waters ofthe State unregulated with respect
to thermal standard.
The Board’s conclusion on the Section 302.211(e) applicability is
based on the interpretation of the phrase “main river” in the regulation.
The Agency
admits
that the Section 302.211(e)
language is poorly drafted.
However, The Agency is
8
not asking the Board to interpret “main river” to
mean all waters ofthe State, rather the
Agency is requesting the Board to
apply the monthly.maxima water temperature limits of
Section 302.211(e) to all waters ofthe State to fill the gap created by the poorly drafted
language.
A literal reading of Section 302.211(e)
should be avoided as it would create a
gap
in the tçmperature protection given to
aquatic life in waters ofthe State other than
rivers.
This liberal reading ofSection 302.211(e)
is both legally and teclmically justified.
The following reasons support the Agency’s position that the monthly maxima
temperature limits
apply to
all waters ofthe
State, including
lakes and
rivers.
A literal reading ofSection 302.211(e) should be further avoided to meet the
Clean Water Act goals.
These goals require the States to
specify appropriate uses to be
achieved and protected by taking into consideration the use and
value ofthe water body
for public water supply, for propagation offish,
shellfish,
and
wildlife,
and
for
recreational, agricultural, industrial,
and navigational purposes.
33 U.S.C.
§
1251.
A water quality standard defines the water quality goals of a water body by
designating the-use or uses to be made ofthe water.
In Illinois, the Board regulations
provide that the Genera!
Use standards are designed to protect,
among other uses, the
State’s water for aquatic life use.
35
IlL Adm. Code 302.202.
Further,
Section 302.201
provides that Subpart B contains general use water quality standards which must be met
in waters of the State for which there is no specific designation.
35 IlL
Adm. Code
302.201.
As Tower Lake is a general
use waterbody,
all designated
uses including the
aquatic
life use, must be protected
to ensure compliance with the Clean Water Act goals.
Just as in rivers,
the aquatic life use in waters ofthe
State other
than
rivers must be
protected from high
temperatures.
9
not asking the Board to
interpret “main river” to
mean all waters of the State, rather the
Agency is requesting the Board to
apply the monthly maxima water temperature limits of
Section 302.211(e) to
all waters ofthe State to
fill the gap created by the poorly drafted
language.
A literal reading of Section 302.211(e) should be avoided
as it would create a
gap in the temperature
protection given to aquatic life
in waters ofthe State other than
rivers.
This liberal reading of Section 302.211(c)
is both
legally and technically justified.
The following reasons support the Agency’s position that the monthly maxima
temperature limits apply to all
waters ofthe State, including lakes and rivers.
A
literal reading ofSection 302.211(e) should be further avoided to
meet the
Clean Water Act goals.
These
goals require the States to
specify appropriate uses to be
achieved and protected by taking into consideration the use and value ofthe water body
for public water supply, for propagation of fish, shellfish, and wildlife, and for
recreational, agricultural, industrial, and navigational purposes.
33 U.S.C.
§
1251.
A water quality standard defines the water quality goals of a water body by
designating the use or uses to be made ofthe water.
In Illinois,
the Board regulations
provide that the General Use standards
are designed to protect,
among other uses, the
Stale’s water for aquatic life use.
35 IlL Adm. Code 302.202.
Further, Section 302.201
provides that Subpart B contains general
use water quality standards which must be met
in waters ofthe State for which there is no specific designation.
35111. Adm. COde
302.201.
As Tower
Lake
is a general use water body, all designated
uses including the
aquatic life use, must be protected to ensure compliance with the Clean Water Act goals.
Just as in rivers, the aquatic life use in waters ofthe
State other than rivers must be
protected from high
temperatures.
9
The-Agency does not dispute the Board’s authority to
promulgate rules that
are
specific to
a particular waterbody.
Nor does the Agency dispute the Board’s findings that
Section
302.211(d) applies to all waters of the State.
The real issue though is whether
waters ofthe State other than rivers need protection afforded by the monthly maxima
temperature limits ofSection 302.211(e).
As Tower Lake is a general use water, the
aquatic life use is a designated use that needs to be protected just as this use needs to be
protected in rivers.
Based on
the Board’s applicability of Section
302.211(e), the aquatic
life use in rivers gets two-tiered protection, whereas the same designated use in waters of
the State other than rivers gets only one tier protection.
This gap in
protection is because
ofthe poor drafting of the regulation, and not because ofthe original drafters’
intent to
lessen the protection provided to
aquatic life in waters of the State other than rivers.
The Agency believes
that the two-tiered protection provided by Sections
302.211(d) and (e) together/jointly is
essential for propagation of fish in waters ofthe
State other than rivers.
The maximum temperature variation from background levels
under Section 302.211(d) provides protection from extreme changes in temperature to
protect fish from dying from temperature shock.
Whereas, the monthly maxima
temperature protection afforded by Section 302.211(e) protects aquatic organisms from
high temperatures that will ultimately kill the organism.
There are several methods to
determine this monthly maxima temperature limit.
For example, Critical Thermal
Maximum (“CTM”) is the temperature at which disorientation and cessation ofdirected
activities can be
causedby high temperatures.
At
this temperature, the animal loses its
ability to escape from conditions that will soon cause its death.
Even if temperature itself
is not responsible for an animal’s death, a CTM
condition can cause or lead to death from
10
predation by
a more active temperature resistant predator (Cooper,
1966’).
Other
methods to determine an upper thermal
endpoint include, chronic thermal maximum
(“ChTM”),
upper incipient
lethal temperature
(“UILT”), and ultimate upper incipient
lethal temperature (“HUILT”).
These methods vary by the rate at which the animal is
subjected to
water temperature changes.
The CMT
method employs rapid change in
the
temperature
(0.5-1.0
°C/hr),where as the ChTM
method slowly changes the water
temperature
(1.0-1.5
°C/day). The end points determined by these methods vary based
on the acclimation temperature ofthe test organism resulting in
a range of endpoints for
each organism.
The following table shows the CTM range for several fish native to
Illinois
(Beitinger et a!.
20002).
Common Name
(Scientific Name)
CTM range
bargemouth Bass
(Micropterus salmoides)
~34
O~
(92.1 °F)—40.1°C(104.2°F)
Emerald Shiner
(Notropis atherinoides)
34.1
OC (93.4 °F)—37.6°C(99.7 °F)
3lacknose Dace
(Rhinichthys atratulus)
319
OC (89.4 °F)
Channel Catfish
(Ictaluruspunctatus)
333
O~
(91.9°F) —42.1 °C(107.8 °F)
~ohnny
Darter
(Etheostomanigrum)
30.1
OC
(86.2 °F)—37.4 °C(99.3 °F)
The table above is notprovided to determine the maximum temperature limit for a
pa~ticu1arspecies, but to illustrate that aquatic organisms need to be protected from
exposure to
maximum
temperatures irrespectiveofwhether they live in lakes, streams,
river, or wetlands. By providing the second-tier protection, themonthlymaxima limit
ensures that the
aquatic life is
protected in situations where the natural background
‘Cooper,
Edwin L. A Symposium on Water Quality Criteria to Protect Aquatic Life, American Fisheries
Society, Special Publication No.4,
September 1966.
2
Beitinger, T.L., WA.
Bennett, and R.
W. McCauley.
2000.
Temperature tolerances of
North American
freshwater
fishes exposed to dynamic changes in temperature.
Environmental Biology of Fishes
58:
237-
275.
11
temperature is high.
For example, if the natural background temperature of the receiving
water is 90°F,
and
a facility causes that temperature to
increase by
5°
F, though
consistent with Section 302.211(d), it could be above the CMT limit, and thus lethal to
the organism.
Finally,
the Agency’s reading of Sections 302.211(d) and (e) as providing two-tier
temperature protection is consistent with the protection provided to aquatic
life in other
states.
Wisconsin’s temperature standards for fish and
aquatic life use provide
two
levels
ofprotection.
One
is similar to the Section 302.211(d) requirement, which states that,
“the
maximum temperature rise at the edge ofthe mixing zone above the existing
natural temperature shall not exceed
5°
F for streams
and 3°F for lakes.”
The second tier
protection is providedby the provision, which states that, “tjhe
temperature shall not
exceed 89°F for warm water fish.”
SeeAttachmentA.
Indiana’s temperature
requirements for protection of aquatic life are similar to those ofIllinois.
327
L&C 2-1-
6(b)(4)(C) and
(4)(D)
ofthe Indiana Code apply to lakes and
reservoirs
and
contain a
requirement regarding maximum temperature rise above natural
temperatures, and a
monthly maxima temperature requirement
,
respectively.
See Attachment B.
In sum, the Agency respectfully requests the Board to
read the monthly maxima
temperature limits of Section 302.211(e) to apply to
all waters of the
State.
The
poorly
drafted Section 302.211(e) creates a gap in
the Illinois thermal standard, and thus a literal
reading of the language
should be
avoided.
Also, as there is no evidence that the original
drafters intended Section 302.211(e) to only apply to
rivers, the Board has authority to
read into the plain language of Section 302.211(e)
to accomplish the
Clean Water Act
12
goals.
Further, two-tier protection is essential to ensure protection ofthe aquatic life use
in waters ofthe State other.than rivers.
CONCLUSION
For the reasons and arguments provided herein, the Agency respectfully requests
the Board to
RECONSIDER the issue regarding the applicability ofSection 302.211(e)
ofthe Board regulation.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
_________________
SanjayK. Sofat
Special Assistant Attorney General
DivisionofLegal Counsel
Dated:
September
14, 2005
1021
North Grand Avenue East
P.O. Box
19276
Springfield,
Illinois 62794-9276
(217) 782-5544
13
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
PROOF OF SERVICE
I, the undersigned,
on oath state that I have served the attached the AGENCY’S
MOTION
FOR AND MEMORANDUM OF LAW IN SUPPORT OF
RECONSIDERATION upon the persons to whom it is directed, by placing a copy
in an
envelope addressed to:
Dorothy Gunn,
Clerk
Joel A. Benoit
Pollution Control Board
MOHAN,
ALEWELT,
PRILLAMAN &
ADAMI
100 West Randolph Street
First of America Center
Suite 11-500
1
N.
Old Capitol Plaza,
Ste. 325
Chicago,
IL
60601
Springfield, IL 62701
Carol
Sudman
Kim
L.
Kim
Hearing Officer
Southern Illinois University Edwardsville
Illinois Pollution
Control Board
Office ofthe General Counsel
1021 N. GrandAve. East
Rendleman Hall, Room 3311
P.O. Box 19274
Edwardsville, IL 62026-1019
Springfield, IL 62792-9274
and mailing
it from Springfield, illinois on September 14, 2005, by U.S. Mail with
sufficient postage affixed.
SUBSCRIBEDANDSWORN BEFOREME
THIS
I
4’tb~ DAY
OF SEPTEMBER, 2005.
U
f.
PENNYJ. TINDER
;
NOTARYPtSJC,
STATE OF ILLINOIS
.t
MY COMMISSION EXPIRES 3-2~2OOt:
THIS FILING PRINTED ON
RECYCLED PAPER
14
Attachment
A
NR 102.04
WISCONSIN ADMINISTRATIvE CODE
8
Unofficial Text (See Printed Volume).
Current through date and Register shown
on Title
Page.
fish
species.
This
subcategory includes, but
is
not
restricted to,
surface waters identified as trout water by thedepartment of natu-
ral
resources
(Wisconsin
Trout
Streams,
publication
6—3600
(80)).
(b)
Warm water sportfish communities.
This
subcategory in-
cludes surface waters capable ofsupporting a community ofwarm
water sport fish orserving as a spawning area for warm water sport
fish.
(c)
Warm waterforagefish communities.
This subcategory in-
cludes surface waters capable of supporting an abundant diverse
community of forage fish andother aquatic life.
(d)
Limitedforagefish
communities.
(Intermediate
surface
waters).
This subcategory includes surface waters
of limited ca-
pacity and naturally poor waterquality
or habitat. These surface
waters arecapable ofsupporting only alimited community offor-
age
fish and other aquatic life.
(e)
Limited aquatic life.
(Marginal surface waters). This sub-
category includessurface waters of severely limited capacity and
naturally poor waterquality
or habitat.
These surface waters are
capable
ofsupporting
only a limited community of aquatic life.
(4)
STANDARDS
FOR FISH
AND AQUATIC
LtFE.
Exceptfor natural
conditions, all waters classified for fish andaquatic life shall meet
the following criteria:
(a)
Dissolved oxygen.
Except as provided in par. (e) and s. NR
104.02
(3), the dissolved oxygen
content in
surfacewaters may
not be lowered to less than
5
mg/L at any time.
(b)
Temperature.
I.
There shall
be no temperature changes
that
may adversely affect aquatic life.
2.
Natural daily and seasonal
temperature fluctuations
shall
be
maintained.
3.
The maximum temperature rise at
the edgeof the mixing
zone above theexisting natural temperatureshall not exceed 5°F
for streams and3°F for lakes.
4.
Thetemperature shall not exceed89°Fforwarmwaterfish.
(c)
pH.
The pH shall
be within the rangeof6.0 to 9.0, with
no
change greaterthan 0.5
units outside theestimated natural season-
al
maximum andminimum.
(d)
Other substances.
Unauthorized concentrations
of sub-
stances are not permitted that alone or
in combination
with other
materials present are toxic to fish dr otheraquatic life, surfacewa-
ters shall meet the acute andchronic criteria as set forth in or de-
veloped
pursuant
to ss.
NR
105.05 and
105.06.
Surface
waters
shall
meet
the criteria
which correspond
to the appropriate fish
and aquatic life subcategory for thesurface water, except as pro-
vided in
a~,.NR104.02
(3).
(e)
Temperature
and
dissolved
oxygen for
cold
waters.
Streams classifiedas trout waters by thedepartment ofnatural re-
sources (Wisconsin Trout Streams, publication 6—3600(80)) oras
great lakes or cold water communities may
not
be
altered from
natural background
temperature and dissolved
oxygen levels
to
such
an extent that trout populations are adversely affected.
1.
There shall be no significantartificial increases in tempera-
ture where natural trout reproduction is
to be protected.
2.
Dissolved oxygen in
classified trout streams shall
not be
artificially lowered to less than 6.0 mg!Lat any time, nor shall the
dissolved oxygen be lowered to less 7.0 mg/L during thespawn-
ing season.
3.
The dissolved oxygen
in
great
lakes tributaries used
by
stocked salmonids for spawning runs shall not be lowered below
natural background during the period of habitation.
(5)
STANDARDS
FOR
RECREATIONAL
USE.
A
sanitary
survey
andior evaluation
to assure protection
from
fecal contamination
is thechiefcriterion in determining the suitability ofa surfacewa-
ter for recreational use.
(a)
Bacteriologicalguidelines.
The
membrane filter fecal coli-
form count may not exceed 200 per
100 ml as a geometric mean
based on not
less
than
5
samples per month, nor exceed 400 per
100 ml
in more than
10
of all samples during any month.
(b)
Exceptions.
whenever the department determines,
in ac-
cordance
with
the procedures
specified
in
s.
NR
210.06,
that
wastewater
disinfection
is
not
required
to
protect
recreational
uses, the recreational usecriteria andclassifications as established
in this subsection and in
chs. NR
103
and 104 do not apply.
(6)
STANDARDS
FOR
PUBLIC HEALTH AND wELFARE.
All
surface
waters shall meet the human threshold andhuman cancer criteria
specified in or developed pursuant to ss. NR
105.08 and
105.09,
respectively. The applicable criteria
vary depending
on whether
the surfacewater
is used for public
drinking water supplies
and
vary with the type of fish and other aquatic life subcategory. All
surface waters providing public drinking water supplies or classi-
fied as
cold
water or warm watersport
fish communities
as de-
scribed in sub.
(3) shall meet the taste and odor criteria specified
in or developed pursuant to
s. NR
102.14.
(7)
STANDARDS
FOR WILDLIFE.
All surface waters shall
be clas-
sified for wildlife uses
andmeet thewildlife criteria
specified in
or developed pursuant to
s. NIt
105.07.
History:
cr.
Register,
Septenber. 1973.No,213,
eff. 10—1—73;
am.
(3).Rcgiater,
Decenber, 1977,No. 264,
elI.
1—1—78; renum. from NR 102.02, r. (3)
(d) 1. to3.,
and
(5), renum.
(3)
(intro.) to(d)
(intro.) and (e) and
(4)10
be(4)
(intro.) 10(e) and(S)and
am.
(4) (a),
(d), (e)(intro.) and (5), Cr. (6)and (7), Register,
Febnjary,
1989, No. 398,
elI.
3—1—89; ant.
(3) (intro.), (6), (7),
r. (3) (a),
renuni. (3)
~)
so (fl’to be (3) (a) 10(e)
and
an,. (3) (a),
Register,
Auguat.
1997, No.
500,
elI.
9—1—97.
NR
102.05
Application
of
standards.
(1)
ANTIDE-
GRADATION.
(a)
No
waters ofthe state shall
be lowered in quality
unless
it has been affirmatively demonstrated to
the department
that
such a change is justified as a result of necessary economic
and social development, providedthat no newor increased efflu-
entinterfereswith orbecomes injurious to any assigneduses made
of or presently possible in such waters.
(b)
Class~flcation
system.
For
the purposesofthis subsection,
all surface waters ofthe state, or portions thereof, shall be classi-
fied
as one of the following:
I.
Outstanding resource waters as listed ins. NIt
102.10,
2.
Exceptional resource waters as listed ins. NIt
102.11,
3.
Great Lakes system waters as listed
in
s. NR
102.12 (1),
4.
Fish andaquatic life waters as described ins. NIt 102.13,
Or
5,
Waters listed
in tables
3
through
8
in
ss.
NIt l04.05
to
104.10.
(2)
STREAMFLOw.
water quality
standards will
not be main-
tained under all naturaloccurrences of flow, temperature, or other
water quality characteristics.
The determination ofwater quality
based effluent limitations or other management practicesshall
be
based upon the following conditions except as provided in ch. NIt
106 for toxic and organoleptic substances and wholeeffluent tox-
icity:
(a) The average minimum
7—day low streamfiow which occurs
once
in
10 years (7—day Qio);or,
(b)
In
the case of dissolved oxygen and wherever sufficient
data on streamfiow and temperature are available, by application
of a 0.274
level of nonattainment. This
is equivalent to
an ex-
pected nonattainment ofthedissolved oxygen criterion ofone day
per year.
(3)
MIXING
zoNEs,
water
quality standards
shall be
met at ev-
ery
point outside of a mixing zone.
The size of the mixing zone
cannot be uniformly prescribed, but shall be based on such factors
as
effluent quality and quantity, available dilution, temperature,
current, type of outfall, channel configuration and restrictions
to
fish movement. For toxic andorganoleptic substances with water
quality criteria or secondary values specified in or developedpur-
suant
to
chs. NR
102
and 105, allowable dilution shall be deter-
mined as specified in ch. NIt 106 in addition to the requirements
specified in
this subsection. Asa guide to thedelineationofa mix-
ing zone, the following shall be taken into consideration:
Register, February, 1998, No. 506
Attachment
B
D4D/AWk
CoDE
50
2
0.7
984
117
9
6
34
I
789
88
0.6
—
65
59
)00
4
1.1
1737
207
18
12
82
3
1418
158
2.
—
117
106
150
6
1.6
2420
289
26
17
137
5
1999
222
4
—
165
149
200
9
2.0
3064
365
34
21
197
8
2549
283
7
—
210
191
250
Il
2.3
3679
438
42
26
262
10
3079
342
10
—
254
230
300
14
2.7
4270
509
50
30
331
13
3592
400
13
—
297
269
350
16
3.0
4845
577
58
34
402
16
4093
455
IS
—
338
306
400
19
3.4
5405
644
65
39
477
19
4582
509
22
—
379
343
450
21
3.7
5952
709
73
43
554
22
5063
563
27
—
419
379
500
24
4.0
6488
773
81
47
634
25
5535
615
32
—
458
415
(b) This subsection establishes minimum
water quality foraquatic life. In addition to subsection (a), subdivisions (I) through
(5) are established to
ensure
conditions necessary for
the maintenance of a well-balanced
aquatic
community.
Subdivisions
(1)
through
(5)
are applicable at any point in
the waters outside of themixing zone:
(I) There shall
be no substances
which impart unpalatable flavor to
food fish or result in
noticeably offensive odors
in the
vicinityofthe water.
(2) No
pI-I
values
below six (6.0)
nor above
nine
(9.0), except
daily
fluctuations
which exceed pH
nine (9.0)
and are
correlated with photosynthetic activity, shall
be permitted.
(3) Concentrations of dissolved
oxygen shalt average at least five (5.0) milligrams per liter per calendar day and shall not
be less
than four (4.0) milligrams per liter at
any time.
(4) The following conditions for temperature:
(A) There shall
be no abnormal temperature changes that may adversely
affect aquatic life unless caused
by natural
conditions.
(B)The normal
daily and seasonal temperature fluctuations that existed before the addition of heat due to
other
than natural causes shall
be
maintained.
(C) The maximum temperature riseat any time or place above natural
temperatures shall
not exceed five degrees
Fahrenheit (5°F)(two and eight-tenths degrees Celsius (2.8°C))instreams and three degreesFahrenheit (3°F).(one
and seven-tenthsdegrees Celsius (1.7°C))in lakes and reservoirs.
(D) Water temperatures shall not exceed the maximum limits in the following table during more than one percent
(1)
ofthe hours in the twelve (12)month period endingwith any month; at no time shall the water temperature
at such locations exceed the maximum limits in Table 3 by more thanthree degrees Fahrenheit (3°F)(one and
seven-tenths degrees Celsius
(1-7°C)).
TABLE 3
Other
Ohio River
Indiana
Main Stem
Streams
2F(°C)
°F(°C)
January
50(10.0)
50(10.0)
February
50(10.0)
50(10.0)
March
60(15.6)
60(15.6)
April
70(21.1)
70(21.1)
May
80 (2&7)
80
(26.7)
June
87(30.6)
90(32.2)
July
89(31.7)
90(32.2)
August
89(31.7)
90(32.2)
September
87
(30.7)
90(32.2)
October
78(25.6)
78(25.5)
