On November 3, 2011, the Wisconsin Legislature completed its final regular session of the year without enacting a delay in the phosphorus rules adopted by the Wisconsin Department of Natural Resources (WDNR) that went into effect just short of one year ago. This is news? Well, yes.
Last June 23, 2010, the WDNR citizen advisory board approved significant revisions to three rules to regulate the discharge of phosphorus to Wisconsin’s waterways. The result of several years’ work with outside interest groups, these revisions establish numerical standards for point sources and performance standards for non-point sources. Following legislative review, on January 1 and December 1, 2010 the rules relating to non-point and point sources respectively went into effect. For additional background and information about the rule content, click here.
On January 3, 2011, Wisconsin’s newly-elected Governor, Scott Walker, expressed his concerns for the financial impact on industries and municipalities of compliance with the new phosphorus rules for point sources. After initially proposing that the rules be substantively rewritten, the Governor instead proposed a two-year delay in the effective date to be enacted as part of the Biennial Budget bill.
Bit it didn’t happen.
Environmental advocacy groups swung into action, urging the Legislature to assure that the rules would remain in effect. Industrial and municipal groups voiced concerns over the economic consequences of rule implementation. In May 2011, two Democratic Wisconsin legislators wrote EPA seeking EPA’s perspective on the proposed suspension or effective date delay; EPA responded that Wisconsin’s rules would remain applicable standards unless or until EPA promulgated a more stringent standard or approved a revision made by Wisconsin.
And the Senate and Assembly Republicans couldn’t agree on any of the options for delaying the rules’ effectiveness. So, they deleted the Governor’s delay proposal. When the Biennial Budget was signed on June 26, 2011, there was no language implementing a delay. The Budget bill did require WDNR to prepare an economic impact analysis on the new rules. Interestingly, while that requirement remained in place, the Governor vetoed the deadline of December 31, 2011, on the grounds that setting a date certain “may compromise the quality” of the fiscal analysis.
Talk then turned to a separate piece of legislation, to be considered during the regular legislative floor periods in September, October and November.
That didn’t happen either.
Meanwhile, in August 2011, WDNR circulated draft “Guidance for Implementing Wisconsin’s Phosphorus Water Quality Standards for Point Source Discharges” for review and comment: a document of nearly 150 pages on how to implement some 20 pages of rules. As it appears these rules are in effect and likely to remain so, attention is now focused on figuring out what they mean.