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.
Request for a Site Specific Criterion for a lower phosphorus concentration
A Site Specific Criterion (SSC) proposal for reducing the phosphorus concentration in LCO from 15 to 10 parts per billion was submitted to WDNR in March 2016 by COLA and the LCO Tribe. The submittal included a request that WDNR initiate emergency rulemaking within 60 days of receipt of the SSC proposal.
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.
November 5, 2018: COLA and the LCO Tribe filed a Petitioners’ Brief on the Merits with the Dane County Circuit Court.
December 5, 2018: WDNR filed its Respondents’ Response Brief on the Merits.
December 21, 2018: COLA and the LCO Tribe filed a Petitioners’ Reply Brief.
March 22, 2019: the Court ordered WDNR to comply with the Stipulation settlement.
April 11, 2019: WDNR filed a Motion for Reconsideration or Relief From Order and filed its Brief in Support of Respondents Motion for Reconsideration.
May 13, 2019: COLA and the LCO Tribe filed a Petitioners’ Response in Opposition to Motion for Reconsideration or Relief from Order.
May 29, 2019: WDNR filed a Reply Brief for its Motion for Reconsideration.
July 2, 2019: WDNR’s Motion for Reconsideration was denied by the Court.
So it appears that WDNR finally has no option other than to develop a SSC for phosphorus on LCO, but It is not yet clear what actions WDNR will take to satisfy the March, 2017 Stipulation by the Court.