Preliminary Listing of an Additional Water to Wisconsin's 2008 List of Waters under the Clean Water Act

Federal Register: April 29, 2010 (Volume 75, Number 82)

Notices

Page 22589-22591

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr29ap10-63

ENVIRONMENTAL PROTECTION AGENCY

FRL-9143-4

Preliminary Listing of an Additional Water to Wisconsin's 2008

List of Waters Under Section 303(d) of the Clean Water Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and request for comments.

SUMMARY: This notice announces the availability of EPA's decision identifying one water quality limited waterbody and associated pollutants in Wisconsin to be listed pursuant to the Clean Water Act

Section 303(d)(2), and requests public comment. Section 303(d)(2) requires that States submit and EPA approve or disapprove lists of waters for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards and for which total maximum daily loads (TMDLs) must be prepared.

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On January 26, 2010, EPA partially approved and partially disapproved Wisconsin's submittal. Specifically, EPA approved

Wisconsin's listing of waters, associated pollutants, and associated priority rankings. EPA disapproved Wisconsin's decision not to list one water quality limited segment and associated pollutant. EPA identified this additional water body and unidentified pollutants along with priority rankings for inclusion on the 2008 Section 303(d) list.

EPA is providing the public the opportunity to review its decision to add the water and unidentified pollutant to Wisconsin's 2008 Section 303(d) list, as required by EPA's Public Participation regulations. EPA will consider public comments in reaching its final decision on the additional water body and pollutants identified for inclusion on

Wisconsin's final list.

DATES: Comments on this document must be received in writing by June 1, 2010.

ADDRESSES: Written comments on today's notice may be submitted to Tinka

G. Hyde, Director, Water Division, Attn: Illinois 303 (d) list, U.S.

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604. As an alternative, EPA will accept comments electronically. Comments should be sent to the following Internet E- mail Address: keclik.donna@epa.gov.

FOR FURTHER INFORMATION CONTACT: Donna Keclik, Watersheds and Wetlands

Branch, at the EPA address noted above or by telephone at (312) 886- 6766. Some additional information can be found at http://www.epa.gov/ reg5oh2o/wshednps/notices.htm.

SUPPLEMENTARY INFORMATION: Section 303(d) of the Clean Water Act (CWA) requires that each State identify those waters for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards. EPA's Water Quality Planning and Management regulations include requirements related to the implementation of Section 303(d) of the CWA (40 CFR 130.7). The regulations require States to identify water quality limited waters still requiring TMDLs every two years. The lists of waters still needing TMDLs must also include priority rankings and must identify the waters targeted for TMDL development during the next two years (40 CFR 130.7).

Consistent with EPA's regulations, Wisconsin submitted to EPA its listing decision under Section 303(d)(2) on August 1, 2008. On January 26, 2010, EPA approved Wisconsin's listing of waters and associated priority rankings and disapproved Wisconsin's decisions not to list one water quality limited segment and associated pollutants, along with priority rankings for inclusion on the 2008 Section 303(d) list. More specifically, EPA disapproved Wisconsin's decision not to include Musky

Bay on the 2008 list for impairment because this water does not meet

Wisconsin's narrative standard set out in Wisconsin Administrative Code

NR 102.04 (1)(b), which provides that ``Floating or submerged debris, oil, scum or other material shall not be present in such amounts as to interfere with public rights in waters of the State.'' As a result of

EPA's disapproval decision, EPA is proposing to place Musky Bay on

Wisconsin's 303(d) list. The list of waterbody/pollutants that EPA has approved and EPA's decision document are available at http:// www.epa.gov/reg5oh2o/wshednps/notices.htm.

During its review of WDNR's proposed 303(d) list, EPA reviewed data available to the State that indicated the impairment of Musky Bay due to excessive nutrients. After reviewing the existing and readily available data, U.S. EPA has determined, for reasons discussed below, that Musky Bay should be included in Category 5A of Wisconsin's 2008 list of impaired waters.

During the 2008 public notice and comment period, WDNR received comments suggesting that the State should list Musky Bay for impairment due to the presence of excessive nutrients, including phosphorus, elevated pH values, as well as the degradation of the Bay due to large floating algal mats and the presence of an invasive plant species known as Curly Leaf Pondweed (Potomogeton cripsus).

The State determined that it would not list the Bay because

Wisconsin does not have numeric criterian for phosphorus and WDNR did not believe that the available data provided a compelling rationale for listing. These data included water samples taken at four locations in the Bay. These locations are (1) MB-1, a deep hole in the Bay; (2) MB- 2, the east outlet from the cranberry bog operation (an inlet to the lake); (3) MB-2a, the west outlet from the cranberry bog operation (an inlet to the lake); and (4) MB-4, the north shore line of the Bay.

After reviewing these data, WDNR determined that samples taken only from MB-1, the deep hole, were representative of the Bay because this location was centrally located and arguably provided a natural average of the various influences on the Bay's water quality, as represented by the other sample locations. After isolating the data for MB-4, WDNR concluded that sampling here showed lower phosphorous levels than at any other site, and that the Bay was not impaired due to phosphorus.

WDNR stated that it will continue to monitor phosphorous levels in the

Bay and will reconsider an impairment determination on the basis of phosphorus in 2010. Further, WDNR noted that the presence of curly leaf pondweed as an invasive aquatic species was not a sufficient basis for making an impairment determination.

While U.S. EPA agrees with the State that additional sampling is needed to make an impairment decision with regard to phosphorus, after reviewing available data, U.S. EPA determined that the Bay is impaired based on Wisconsin's narrative standard Wisc. Admin. Code NR 102.04

(1)(b), which provides that ``Floating or submerged debris, oil, scum or other material shall not be present in such amounts as to interfere with public rights in waters of the State'' and thus the Bay should be listed as a Category 5A water.

In making its listing proposal, U.S. EPA reviewed the information submitted during the State's public comment period and held subsequent discussions with WDNR staff. WDNR supplied a copy of a letter dated

November 8, 2007, from WDNR to Lac Courte Oreilles Lake Association stating that ``there are very significant water quality concerns for

Musky Bay and that the cranberry bogs' discharge of nutrients is a major source of the problems.'' WDNR further stated in the letter that there are two suggestions that could be considered to help partially address the water quality/water use concerns: 1. Navigational corridors through the dense beds of aquatic plants could be maintained by mechanical harvesting or possibly herbicide application. This would improve access to the main lake by

Musky Bay property owners and improve access to the bay by other lake users. Implementing this activity would be likely to enhance your argument that the public use of the bay is currently limited and costs are being incurred to address the limitation. * * * 2. Sources of nutrient loading other than the cranberry bogs could be assessed for application of nutrient loading reductions practices. Other agricultural areas and residential areas in Musky

Bay watershed have been estimated to be the source of about 12% of the annual phosphorus load to the bay (Lac Courte Oreilles

Conservation Department). * * * \1\

\1\ See Letter from Tom Aartila, Upper Chippewa Basin Watershed

Supervisor, WDNR, to Messrs. Siverton and Umland, November 8, 2007, attached to e-mail message from Craig P. Roesler, WDNR to Donna

Keclik, U.S. EPA, April 7, 2009.

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Based on the information submitted, including the documented impaired use of the Bay for boating, as evidenced by WDNR's acknowledgement of the need to cut navigational corridors through the heavy algal mats,

U.S. EPA is proposing to list Musky Bay on the 2008 Wisconsin's 303(d) list in Category 5A.

EPA solicits public comment on its identification of one additional water and associated pollutant Musky Bay, pollutant unidentified for inclusion on Wisconsin's 2008 Section 303(d) list.

Dated: April 15, 2010.

Timothy C. Henry,

Acting Director, Water Division, EPA Region 5.

FR Doc. 2010-9984 Filed 4-28-10; 8:45 am

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