DNR To Move Forward With Phosphorus Criteria Rulemaking

On April 10, the Wisconsin Department of Natural Resources Board gave its approval to move forward with a rule that would establish procedures for developing site-specific phosphorus criteria. DNR plans to submit the rule to Legislative Council and hold public hearings on the rule this summer.

Current Wis. Admin. Code NR 102.06 establishes statewide phosphorus criteria. Any site-specific criteria more or less stringent than the statewide standard must then be promulgated by individual rule. The proposed code changes would create a streamlined, standard methodology for establishing site-specific criteria so that DNR could establish criteria outside of the rulemaking process. The process for establishing criteria would include public comment and review by the federal Environmental Protection Agency but would bypass rulemaking requirements such as approval of the governor, legislative review, and fiscal estimates. However, if a member of the public requests rulemaking on a proposed site-specific criteria, DNR would have to promulgate the individual criterion through the formal rulemaking process. This new process raises significant concerns with whether the rule complies with Chapter 227 rulemaking statutes. Business groups will likely raise concerns with this portion of the proposed rule.

The scope statement for the proposed phosphorus criteria rule, which provides a summary of the rule and the agency’s statutory authority to promulgate it, expires on Feb. 4, 2020. DNR must hold public hearings on the bill, then obtain approval from the governor and legislature before that date. If the scope statement expires before the rule has been fully promulgated, DNR must start the process over with a new scope statement. Read more about the rulemaking process.