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Regulatory Actions

The Site-Specific Criterion for Phosphorus of 10 ug/L is Finally Approved by the State of Wisconsin!

 The site-specific criterion (SSC) of 10 μg/L for phosphorus for Lac Courte Oreilles was approved by the Wisconsin State Legislature following the recommendation of WDNR’s Natural Resources Board and Governor Evers. The rule will soon be recorded in the Wisconsin Administrative Register.

 This is a tremendous victory for Lac Courte Oreilles. The SSC proposal to lower the limit from 15 to 10 μg/L was first sent to WDNR in March 2016 by COLA and the LCO Tribe. Now, nearly seven years later, we’ve finally been rewarded with an acknowledgement that the LCO lakes deserve greater protection.

 A huge challenge remains. The new 10 μg/L phosphorus standard can only be reached by voluntary actions because all sources of phosphorus on LCO are currently regarded as “non-point” under the Clean Water Act. This means that there are no regulatory measures available under federal or state law to control phosphorus pollution.

 More than 40% of the readily-controllable phosphorus is coming from the cranberry marshes on LCO. The discharges from the marshes can be cleaned up by recycling water by the use of holding ponds. COLA, the LCO Tribe, and the WDNR will renew efforts to bring the cranberry growers into an alliance dedicated to reducing phosphorus pollution.

 A final thanks to all who, over the last seven years, have written letters, attended meetings, and otherwise supported COLA and the LCO Tribe. This has been a rough road, but well worth traveling.

Request for impairment status for Musky Bay

In June 2014, after five years of COLA and LCO Tribal effort, the United States Environmental Protection Agency (EPA) declared Musky Bay to be “impaired water” under the federal Clean Water Act. The water quality in Musky Bay had been severely degraded over the years because phosphorus was accumulating in the Bay causing algae blooms, algal mats, and excessive aquatic plant growth. As all this biomass decomposed, the oxygen concentration in the water was depleted resulting in fish kills and disruption of muskellunge egg development. The overall result was that the recreational use (swimming, paddling, boating, and fishing) in Musky Bay was “impaired” and must be fixed according to federal law.

COLA and the LCO Tribe welcomed the impairment news from EPA as a major step forward in the effort to preserve and protect the LCO lakes because along with impairment status comes the regulatory/legal framework to implement the phosphorus reductions needed to restore and preserve LCO water quality. In addition, with impairment status comes access to federal and state grants to pay for phosphorus reduction and restoration dollars.

COLA's Total Maximum Daily Load analysis

In 2011, COLA and the LCO tribe initiated a Total Maximum Daily Load (TMDL) study in anticipation that Musky Bay would eventually be listed as an impaired water. Once designated as an impaired water, WDNR would be obligated to take action by federal law, but WDNR would have 13 or more years to initiate any action. COLA decided to spend ~$200,000 to conduct its own TMDL study, using the same contractor used by WDNR (LimnoTech), to speed up the restoration process. The final TMDL report was finished in July 2014.

REQUEST FOR IMPAIRMENT STATUS FOR ALL OF LCO

COLA and the LCO Tribe completed an assessment of sampling data from 2012 to 2016 and determined that recent changes in dissolved oxygen and phosphorus concentrations would result in the extinction of the cold-water fish species in LCO. High phosphorus concentrations are resulting in more algae and algal blooms, a decrease in water clarity, and excessive aquatic plant growth. The microbial breakdown of excessive aquatic plant residue reduces dissolved oxygen concentrations thereby threatening cold-water fish species - cisco and lake whitefish. Therefore, COLA and the LCO Tribe requested that all of LCO be listed as an impaired water.

On November 15, 2017 the WDNR issued its proposed 2018 list of Impaired Waters. The WDNR proposed to list all of Lac Courte Oreilles as impaired but listed “low dissolved oxygen” (DO) as an indicator, or symptom, of that impairment without citing “Total Phosphorus” as the cause of the impairment. During the Public Comment Period, through Dec. 29, 2017, COLA requested that the WDNR also correctly list the cause of the low DO impairment of LCO.

On August 2, 2018, the US EPA approved the inclusion of all of LCO on the Wisconsin list of impaired waters based on low dissolved oxygen. 

Legal challenge of WDNR's administrative activities

In May 2016, WDNR rejected the request for emergency rulemaking, so in June 2016 COLA and the LCO Tribe filed for judicial review with the Dane County Circuit Court in Madison, WI. The Wisconsin State Cranberry Association moved to intervene in the case, a motion that was granted in September 2017.

In March 2017, WDNR reversed direction by agreeing to develop a SSC providing a protective phosphorus standard for LCO (the Stipulation). WDNR's rule-making process was approved by Governor Scott Walker in July, 2017 and by the Wisconsin Natural Resources Board on September 27, 2017. WDNR had 150 days under the Stipulation settlement with the LCO Tribe and COLA to propose a SSC and issue public notice of the rule making.

Unfortunately, WDNR never followed through with a SSC, claiming that, even though LCO’s cold-water fishery was impaired by an insufficient oxythermal layer, WDNR did not want to consider phosphorus as a cause. The parties met to discuss the issue, but since the WDNR was unwilling to take any further action to develop a SSC for LCO, COLA and the LCO Tribe filed a second petition challenging WDNR’s lack of action. In October, 2018 the Court determined that issues about whether the March, 2017 Stipulation was violated could be briefed with the merits.

Subsequently:

WDNR recommends ssc of 10 ppb

In January, 2020, after an outpouring of public sentiment and additional scientific evidence for a more protective SSC, WDNR announced its decision to recommend a 10 ppb phosphorus SSC for LCO.

Natural Resources Board denies SSC

On January 22, 2020, WDNR's recommendation for 10 ppb phosphorus criterion for Lac Courte Oreilles was denied by the Natural Resource Board (NRB) after a tie vote. NRB Chair Fred C. Prehn cast the deciding vote in opposition.

COLA and the LCO Tribe resubmit SSC for 10 ppb

In June, 2020, COLA and the LCO Tribe once again requested that the WDNR revise its water quality standards for LCO and presented a revised SSC rule-making petition including additional scientific support specifying a phosphorous criterion of 10 ppb.

WDNR again recommends SSC of 10 ppb

In November, 2020, WDNR granted COLA's second rule-making petition and prepared a revised scope statement for review by the NRB recommending that a 10 ppb phosphorus criterion proceed to administrative review. The NRB subsequently approved the scope statement, and a ruling on the final SSC proposal by the NRB is expected in mid 2023.