Storm Water_Content Page_NR216 Revisions

NR 216 Rule Updates

The purpose of Chapter NR 216, Wis. Adm. Code is to establish criteria defining those storm water discharges needing WPDES storm water permits, as required by s. 283.33, Wis. Stats., and to implement the appropriate performance standards of subchs. III and IV of ch. NR 151, Wis. Adm. Code. Chapter NR 216 identifies which industrial facilities, construction sites and municipalities require WPDES storm water permits, application requirements, and storm water discharge permit criteria for each type of facility.

The Wisconsin DNR creates and revises administrative rules to implement statutes enacted by the Wisconsin State Legislature. Administrative rules have the full force and effect of law.

The update of ch. NR 216, Wis. Adm. Code followed procedures established under ch. 227, Stats. Rule development documents are available at: CR 21-027. The final rule was published in the Wisconsin Administrative Register No. 795B on March 28, 2022.

Changes affecting all storm water permit types

  1. Definitions were added to support language in the subchapters.
  2. Section NR 216.006 establishes electronic fillable forms as the typical permit document submission format to facilitate compliance with the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule. It also establishes a waiver process for those who provide justification for submitting documents in hard copy. All references to document submittal requirements have been updated to reference s. NR 216.006.
  3. References to ch. NR 151, Wis. Adm. Code were updated to include sections that became effective on Jan. 1, 2011.
  4. Section NR 216.007 identifies protections for outstanding resource waters (ORW), exceptional resource waters (ERW), and impaired waters to improve consistency with federal regulations. This section provides more direct code support for provisions in storm water permits requiring protection of high-quality water resources and reduction of pollutant discharges to impaired waters. Total Maximum Daily Loads (TMDLs) are required to be included in WPDES permits by s. 283.31(3)(d)3, Stats. and s. NR 205.067(3)(a), Wis. Adm. Code. The existing statute and code are tailored toward implementation for traditional point sources such as wastewater treatment plants. Ch. NR 216 was updated to clarify how TMDLs are addressed in storm water permits.
  5. Section NR 216.003(3) clarifies the applicability of expired and reissued general permits to entities covered under an industrial or construction general permit.
  6. Sections NR 216.022, 216.21(4), and 216.42(6), exempting activities covered under other department programs from storm water permitting, were removed in response to EPA concerns.

Changes to the Municipal Subchapter

  1. Subchapter I of ch. NR 216 was amended to be consistent with the National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule that requires permit conditions that are clear, specific, and measurable for the minimum control measures included in s. NR 216.07 and provides for public input on those conditions. The changes proposed clarify the department’s authority to define requirements for these programs in permits, implement improvements in each successive permit, and obtain the information needed for those improvements from permit applications, reapplications, and reporting.
  2. Subchapter I of ch. NR 216 was updated to clarify the application requirements for coverage under general and individual permits.
  3. Section. NR 216.07(8)(f) was created to clarify expectations for permittees relying on other entities to satisfy some of the permit obligations, in response to EPA concerns.
  4. Subsections within s. NR 216.07(8), were created to require permittees to evaluate the effectiveness of an MS4’s MS4’s storm water management program within the annual report and require MS4s to summarize any changes to required programs. This change was made to improve consistency with federal regulations. The code was also amended to allow the 4th year annual report to serve as a reapplication mechanism for general permittees.
  5. Section NR 216.07(11) was created to require permittees to retain records related to permit requirements and make them available to the public to improve consistency with federal regulations.
  6. Section NR 216.04 was amended to clarify when TMDL provisions will be included in permits. Section NR 216.07 (7) was modified to require, within a permit, mapping related to TMDL implementation. Section. NR 216.07 (10) was created to provide a framework for TMDL implementation through demonstrated progress when meeting the TMDL in one 5-year permit term is not feasible. The existing urbanized area performance standard language previously listed under pollution prevention has also been moved into this section for clarity.
  7. Code language regarding the authorized local program was relocated from the construction subchapter to s. NR 216.10. The authorized local program is voluntary and provides for streamlined permitting for construction sites that require both state and local construction site erosion control permit coverage in participating municipalities. Amendments were made to address EPA concerns regarding application transfer, permit coverage denial, permit revocation, individual permit processes, and department notification relative to permittee noncompliance.

Changes to the Industrial Subchapter

  1. Section NR 216.21(2)(b) was amended to remove the exclusion of access roads and rail lines from the area covered by an industrial storm water discharge permit. This exclusion is not authorized by federal law.
  2. Section NR 216.21(2)(b)7. was amended to clarify that construction and demolition waste disposal sites require industrial storm water permits. This requirement does not apply to placement of recycled material used during construction
  3. The requirement for applicants certifying ‘no exposure’ to provide latitude and longitude information in the application was moved from NR 216.21(3)(b)3.(Note) to 216.21(3)(e)2 to improve consistency with federal regulations.
  4. Section NR 216.29 has been amended to allow the submittal of a Storm Water Pollution Prevention Plan (SWPPP) in lieu of a SWPPP summary form.
  5. (5) Section NR 216.27 has been amended to require identification of receiving waters that are designated as Exceptional Resource Waters (ERW), Outstanding Resource Waters (ORW), or impaired waters in new or updated SWPPPs, where applicable. The SWPPP must contain information on potential impacts to Outstanding or Exceptional Resource Waters and Impaired Waters that that receive storm water discharges from the site.

Changes to the Construction Subchapter

  1. The section on authorized local programs has been relocated to the Municipal subchapter. The authorized local program is voluntary and provides for streamlined permitting for construction sites that require both state and local construction site erosion control permit coverage in participating municipalities.
  2. Exemptions for certain agricultural and silvicultural activities have been clarified in ss. NR 216.42 (2) to (3) and 216.57 (3) to be more consistent with state statute and federal regulations. The drainage district exemption in s. NR 216.42 (8m) incorporates an exemption added to s. 283.33 (1m) (a) 3. conditioned to improve consistency with the Clean Water Act per EPA comment.
  3. Routine maintenance exemptions have been clarified in a new note to s. NR 216.42 (8) to better align with federal implementation of this exemption and provide regulatory certainty.
  4. Erosion control and storm water management plan are now required to include discussion of impacts to ORW, ERW, impaired waters, and TMDLs. The erosion control and storm water management plans must contain information on potential impacts to Outstanding or Exceptional Resource Waters and Impaired Waters that receive water from the site.
  5. Section NR 216.43 (5) has been added to clarify that permittees are required to reapply for coverage when the duration of land disturbing construction activity extends longer than 3 years.
  6. Certificates of permit coverage are required to be posted in publicly accessible locations under an amended s. NR 216.455 (2).
  7. Section NR 216.50 has been amended to clarify when an amendment is required and when a new notice of intent is warranted.
  8. Section NR 216.43 (2) has been updated to modify construction site storm water discharge permit fee categories and fees, as shown in the table below. The new fees will take affect Jan. 1, 2023. Notice of Intent (NOI) fees are doubled if site disturbance begins before the department receives an NOI.
    Acres of Land Disturbance Application Fee before Jan. 1, 2023 Application Fee after Jan. 1, 2023
    Less than 2 $140 $250
    2 or more and less than 5 $350
    5 or more and less than 25 $235 $550
    25 or greater $350 $800