In May we reported that the new phosphorus rules for point sources adopted by the Wisconsin Department of Natural Resources (“WDNR”) had gone into effect on December 1, 2010, but might not remain in effect for long. The expectation at that time was that the Governor’s Biennial Budget bill would include a two-year delay in the effective date of the rules. See our May 9, 2011 client alert Wisconsin DNR’s New Phosphorus Rules: Are They in Effect?

It never happened. 

The Governor’s original budget proposal prohibited WDNR from promulgating or enforcing phosphorus rules more stringent than those established in the neighboring states of Illinois, Indiana, Michigan, Minnesota or Ohio. That proposal met with much concern and the talked-about alternative was to enact the two-year delay. The Joint Committee on Finance considered various options presented by the Legislative Fiscal Bureau.  Reportedly, the Senate and Assembly Republicans couldn’t agree on any of the delay options, and chose instead to delete the Governor’s proposal.  As a result, the Biennial Budget bill signed by Governor Walker on June 26, 2011 contained no language on the issue – leaving the adopted rules in place.

Now the talk is about a separate piece of legislation. Since the legislative session is now over, this will have to wait at least until September when the new session opens. What the legislation might say is yet to be determined.

So, the work begins in earnest to implement the rules. There are lots of procedural and substantive issues to address and WDNR is working with outside groups to identify those issues and fashion responses which will form the basis for WDNR guidance.