(1) DEFINITION. In this section, “variance” means a variance to a water quality standard adopted under s. 281.15. (2) REQUEST FOR VARIANCE. (a) If a permit contains a variance or if a permittee anticipates that a reissued permit will include a water quality based effluent limitation under s. 283.13 (5), when the permittee applies for reissuance of the permit the permittee may apply to the department for renewal of the variance or for a variance from the water quality standard that would be used to derive the water quality based effluent limitation. (am) 1. Within 60 days after the department reissues or modifies a permit to include a water quality based effluent limitation under s. 283.13 (5), the permittee may apply to the department for a variance from the water quality standard used to derive the limitation. 2. After an application for a variance is submitted to the department under subd. 1., and until the last day for seeking review of the secretary’s final decision on the application or a later date fixed by order of the reviewing court, the water quality based effluent limitation under s. 283.13 (5) and the corresponding compliance schedule are not effective. All other provisions of the permit continue in effect except those for which a petition for review has been submitted under s. 283.63. For those provisions for which an application for variance has been submitted under this section, the corresponding or similar provisions of the prior permit continue in effect until the last day for seeking review of the department’s final decision or a later date fixed by order of the reviewing court. (b) The department shall specify by rule the information to be included in an application under this subsection. (c) The department may request additional information from the permittee within 30 days after receiving an application under par. (am) 1. The permittee shall provide the additional information within 30 days after receipt of the department’s request. An application is not complete until the additional information is provided to the department. (d) If the permittee does not provide information as required under par. (b) or (c), the department shall deny the application. (3) TENTATIVE DECISION. (a) The secretary shall issue a tentative decision on an application for a variance under sub. (2) (a) in the notice under s. 283.39 for the reissuance of the permit. (b) The secretary shall issue a tentative decision on an application for a variance under sub. (2) (am) 1. within 120 days after receipt of a completed application. The department shall circulate the tentative decision to the permittee and to the parties in s. 283.53 (2) (c) . If the tentative decision is to grant a variance based upon one or more of the conditions specified in sub. (4) (a) 1. a. to e., the department shall include in the notice under this paragraph a statement on the effect of the variance, if granted, on the designated use of the water body during the term of the underlying permit. The department shall provide a 30-day period for written comments on the tentative decision. (4) FINAL DECISION ON VARIANCE. (a) 1. The secretary shall approve all or part of a requested variance, or modify and approve a requested variance if the permittee demonstrates, by the greater weight of the credible evidence, that attaining the water quality standard is not feasible because: a. Naturally occurring pollutant concentrations prevent the attainment of the standard; b. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the standard, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating water conservation requirements; c. Human caused conditions or sources of pollution prevent the attainment of the standard and cannot be remedied or would cause more environmental damage to correct than to leave in place; d. Dams, diversions or other types of hydrologic modifications preclude the attainment of the standard, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the standard; e. Physical conditions related to the natural features of the water body, such as the lack of proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or f. The standard, as applied to the permittee, will cause substantial and widespread adverse social and economic impacts in the area where the permittee is located. 2. The secretary shall deny a requested variance if the permittee fails to make the demonstration required under subd. 1. (d) The decision under this subsection is reviewable under subch. III of ch. 227, except that ss. 227.40 to 227.46, 227.485 to 227.51 and 227.60 do not apply to the decision under this subsection. (4m) VARIANCES FOR FISH FARMS. In deciding whether to grant an application for a variance for a fish farm, the secretary shall rely on the same guidance documents and other information that would be used by the federal environmental protection agency to review and approve or disapprove the variance as required under 40 CFR 131.14. (5) CONDITIONS ON VARIANCES. (a) A variance applies only to the permittee requesting the variance and to the pollutant specified in the variance. A variance does not affect or require the department to modify the corresponding water quality standard adopted under s. 281.15. (b) A variance applies for the term established by the secretary, but not to exceed 5 years. The term of the initial variance and any renewals thereof may not exceed the time that the secretary determines is necessary to achieve the water quality based effluent limitation. Initial and interim effluent limitations established under par. (c) 1. apply, as appropriate, for the term of the underlying permit as reissued or modified to implement the decision under sub. (4) (a) 1. or as extended by operation of s. 227.51 (2). Notwithstanding sub. (4) (d), s. 227.51 (2) shall apply for the purposes of continuing the provisions of a permit pending the reissuance of a permit. (c) The department shall require all of the following in a permit reissued or modified to implement a variance: 1. Compliance with an initial effluent limitation that at the time the variance is approved represents the level currently achievable by the permittee and that is no less stringent than the effluent limitation achieved under the permit before reissuance. At the time a variance is approved a compliance schedule and an interim effluent limitation that is achievable by the permittee during the term of the variance may be specified. The initial and the interim effluent limitations may not be less stringent than a categorical effluent limitation that applies to the permittee under s. 283.13 (2) or (4) or 283.19 or a toxic effluent standard that applies to the permittee under s. 283.21. 2. Investigation of treatment technologies, process changes, pollution prevention, wastewater reuse or other techniques that may result in compliance by the permittee with the water quality standard adopted under s. 281.15, and submission of reports on the investigations at such times as required by the department. The secretary shall modify or waive the requirements specified in this subdivision if the secretary determines, based upon comments received on the tentative decision under sub. (3), that the requirements of this subdivision are: a. Reasonably beyond the technical or financial capability of the permittee; or b. Unreasonable in light of the conditions specified in sub. (4) (a) 1. a. to e. (d) The department may impose conditions in the permit as necessary to administer the variance including, but not limited to, additional monitoring requirements. (6) RENEWAL. A variance may not be renewed if the permittee did not submit the reports required under sub. (5) (c) 2. or substantially comply with all other conditions of the variance. (7) DELEGATION OF SECRETARY’S AUTHORITY. The secretary may designate an officer or employee of the department to make any decision that the secretary is required to make under this section. (8) NO RIGHT TO A HEARING. Notwithstanding s. 227.42, there is no right to a hearing under this section. (9) RELATION TO PERMIT REVIEW. If the secretary approves part or all of a variance or modifies and approves the variance under this section and the department issues a modified water quality based effluent limitation under s. 283.63 for the same substance, the permittee shall comply with the least stringent of the 2 effluent limitations. (10) APPLICABILITY. (a) Subsections (2) to (5) do not apply if the water quality based effluent limitation results from the decision of the department under s. 283.63 to make the water quality based effluent limitation less stringent than the effluent limitation in the permit as issued, reissued or modified. (b) Subsections (2) to (5) apply if the water quality based effluent limitation results from the decision of the department under s. 283.63 to make the water quality based effluent limitation more stringent than the effluent limitation in the permit as issued, reissued or modified. (c) This section does not apply to the issuance, reissuance or modification of a permit to incorporate a toxic effluent standard or prohibition promulgated by rule under s. 283.11 (4) or 283.21. (11) WATER QUALITY STANDARDS REVIEW. As part of the review of water quality standards under s. 281.15 (6), as required by 33 USC 1313 (c) (1), the department shall review the variances to water quality standards approved under s. 283.15 or 283.16. The department shall receive information regarding these variances at the public hearing held under s. 281.15 (6). If the department determines that a water quality standard to which a variance applies is attainable, the department shall modify the standard or variance accordingly at the time the permit containing the variance is reissued, modified, or revoked and reissued. (12) FEDERAL REQUIREMENTS. Notwithstanding any of the provisions of this section, the department shall comply with the provisions of 40 CFR 131.14 when approving and implementing a variance under this section.
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