Print Friendly HOUSE BILL NO. 663 – Outstanding resource waters
HOUSE BILL NO. 663
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H0663.........................................by RESOURCES AND CONSERVATION
OUTSTANDING RESOURCE WATERS - Amends and adds to existing law to further
define "designated agency" and "new nonpoint source activity"; to provide
for state agencies developing best management practices; and to designate
certain reaches of the Selway River, the Middle Fork of the Salmon River,
White Cap Creek, Bear Creek and Moose Creek to be outstanding resource
02/12 House intro - 1st rdg - to printing
02/13 Rpt prt - to Res/Con
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fourth Legislature Second Regular Session - 1998
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 663
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO OUTSTANDING RESOURCE WATERS; AMENDING SECTION 39-3602, IDAHO
3 CODE, TO FURTHER DEFINE THE TERMS "DESIGNATED AGENCY" AND "NEW NONPOINT
4 SOURCE ACTIVITY" AND TO CORRECT A CODIFIER'S ERROR; AMENDING SECTION
5 39-3620, IDAHO CODE, TO PROVIDE FOR STATE AGENCIES DEVELOPING BEST MANAGE-
6 MENT PRACTICES; AND AMENDING CHAPTER 36, TITLE 39, IDAHO CODE, BY THE
7 ADDITION OF NEW SECTIONS 39-3617A, 39-3617B, 39-3617D, 39-3617E AND
8 39-3617F, IDAHO CODE, TO DESIGNATE THE SELWAY RIVER, FROM THE HEADWATERS
9 TO THE WESTERN WILDERNESS BOUNDARY AT RUSH CREEK AS AN OUTSTANDING
10 RESOURCE WATER, TO DESIGNATE THE MIDDLE FORK OF THE SALMON RIVER FROM THE
11 CONFLUENCE OF BEAR VALLEY AND MARSH CREEKS TO ITS CONFLUENCE WITH THE
12 SALMON RIVER AS AN OUTSTANDING RESOURCE WATER, TO DESIGNATE WHITE CAP
13 CREEK FROM THE HEADWATERS TO ITS CONFLUENCE WITH THE SELWAY RIVER AS AN
14 OUTSTANDING RESOURCE WATER, TO DESIGNATE BEAR CREEK FROM THE HEADWATERS TO
15 ITS CONFLUENCE WITH THE SELWAY RIVER AS AN OUTSTANDING RESOURCE WATER AND
16 TO DESIGNATE MOOSE CREEK FROM THE HEADWATERS TO ITS CONFLUENCE WITH THE
17 SELWAY RIVER AS AN OUTSTANDING RESOURCE WATER.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Section 39-3602, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 39-3602. DEFINITIONS. Whenever used or referred to in this act, unless a
22 different meaning clearly appears from the context, the following terms shall
23 have the following meanings:
24 (1) "Applicable water quality standard" means those water quality stan-
25 dards identified in the rules of the department.
26 (2) "Best management practice" means practices, techniques or measures
27 developed, or identified, by the designated agency and identified in the state
28 water quality management plan which are determined to be a cost-effective and
29 practicable means of preventing or reducing pollutants generated from nonpoint
30 sources to a level compatible with water quality goals.
31 (3) "Board" means the board of health and welfare.
32 (4) "Department" means the department of health and welfare.
33 (5) "Designated agency" means the department of lands for timber harvest
34 activities, for oil and gas exploration and development and for mining activi-
35 ties; the soil conservation commission for grazing activities and for agricul-
36 tural activities; the transportation department for public road construction;
37 the department of agriculture for aquaculture; the Idaho outfitters and
38 guides licensing board for outfitting activities; and the department of
39 health and welfare's division of environmental quality for all other activi-
41 (6) "Designated use or designated beneficial use" means those uses
42 assigned to waters as identified in the rules of the department whether or not
43 the uses are being attained. The department may adopt subcategories of a use.
1 (7) "Director" means the director of the department of health and wel-
2 fare, or his or her designee.
3 (8) "Discharge" means any spilling, leaking, emitting, escaping, leach-
4 ing, or disposing of a pollutant into the waters of the state. For the pur-
5 poses of this chapter, discharge shall not include surface water runoff from
6 nonpoint sources or natural soil disturbing events.
7 (9) "Existing use" means those surface water uses actually attained on or
8 after November 28, 1975, whether or not they are designated uses. Existing
9 uses may form the basis for subcategories of designated uses.
10 (10) "Full protection, full support, or full maintenance of designated
11 beneficial uses of water" means compliance with those levels of water quality
12 criteria listed in the appropriate rules of the department, or where there is
13 no applicable numerical criteria, compliance with the reference streams or
14 conditions approved by the director in consultation with the appropriate basin
15 advisory group.
16 (11) "Lower water quality" means a measurable adverse change in a chemi-
17 cal, physical, or biological parameter of water relevant to a designated bene-
18 ficial use, and which can be expressed numerically. Measurable adverse change
19 is determined by a statistically significant difference between sample means
20 using standard methods for analysis and statistical interpretation appropriate
21 to the parameter. Statistical significance is defined as the ninety-five per-
22 cent (95%) confidence limit when significance is not otherwise defined for the
23 parameter in standard methods or practices.
24 (12) "National pollutant discharge elimination system (NPDES)" means the
25 point source permitting program established pursuant to section 402 of the
26 federal clean water act.
27 (13) "New nonpoint source activity" means a new nonpoint source activity
28 or a substantially modified existing nonpoint source activity on or adversely
29 affecting an outstanding resource water which includes, but is not limited to,
30 new silvicultural activities, new mining activities and substantial modifica-
31 tions to an existing mining permit or approved plan, new recreational activi-
32 ties and substantial modifications to existing recreational activities, new
33 residential or commercial development that includes soil disturbing activi-
34 ties, new grazing activities and substantial modifications to existing grazing
35 activities, except that reissuance of existing grazing permits, or grazing
36 activities and practices authorized under an existing permit, is not consid-
37 ered a new activity ; and reissuance or transfer of existing licensed
38 outfitter special use permits authorized under an existing operating plan is
39 not considered a new activity . It does not include naturally occurring
40 events such as floods, landslides, and wildfire including prescribed natural
42 (14) "Nonpoint source activities" includes grazing, crop production, sil-
43 viculture, log storage or rafting, construction, mining, recreation, septic
44 systems, runoff from storms and other weather related events and other activi-
45 ties not subject to regulation under the federal national pollutant discharge
46 elimination system. Nonpoint source activities on waters designated as out-
47 standing resource waters do not include issuance of water rights permits or
48 licenses, allocation of water rights, operation of diversions, or impound-
50 (15) "Nonpoint source runoff" means water which may carry pollutants from
51 nonpoint source activities into the waters of the state.
52 (16) "Outstanding resource water" means a high quality water, such as
53 water of national and state parks and wildlife refuges and water of excep-
54 tional recreational or ecological significance, which has been so designated
55 by the legislature. It constitutes an outstanding national or state resource
1 that requires protection from point source and nonpoint source activities that
2 may lower water quality.
3 (17) "Person" means any individual, association, partnership, firm, joint
4 stock company, joint venture, trust, estate, political subdivision, public or
5 private corporation, state or federal governmental department, agency or
6 instrumentality, or any legal entity, which is recognized by law as the sub-
7 ject of rights and duties.
8 (18) "Point source" means any discernible, confined, and discrete convey-
9 ance including, but not limited to, any pipe, ditch, channel, tunnel, conduit,
10 well, discrete fissure, container, rolling stock, concentrated animal feeding
11 operation, or vessel or other floating craft, from which pollutants are, or
12 may be, discharged. This term does not include return flows from irrigated
13 agriculture, discharges from dams and hydroelectric generating facilities or
14 any source or activity considered a nonpoint source by definition.
15 (19) "Pollutant" means dredged spoil, solid waste, incinerator residue,
16 sewage, garbage, sewage sludge, munitions, chemical waste, biological mate-
17 rials, radioactive materials, heat, wrecked or discarded equipment, rock,
18 sand, silt, cellar dirt; and industrial, municipal and agricultural waste,
19 gases entrained in water; or other materials which, when discharged or
20 released to water in excessive quantities cause or contribute to water pollu-
21 tion. Provided however, biological materials shall not include live or occa-
22 sional dead fish that may accidentally escape into the waters of the state
23 from aquaculture facilities.
24 (20) "Reference stream or condition" means one (1) of the following:
25 (a) The minimum biological, physical and chemical conditions necessary to
26 fully support the designated beneficial uses; or
27 (b) A water body representing n atural natural
28 conditions with few impacts from human activities and which are represen-
29 tative of the highest level of support attainable in the basin; or
30 (c) A water body representing minimum conditions necessary to fully sup-
31 port the designated beneficial uses.
32 In highly mineralized areas or in the absence of such reference streams or
33 water bodies, the director, in consultation with the basin advisory group and
34 the technical advisers to it, may define appropriate hypothetical reference
35 conditions or may use monitoring data specific to the site in question to
36 determine conditions in which the beneficial uses are fully supported.
37 (21) "Short-term or temporary activity" means an activity which is limited
38 in scope and is expected to have only minimal impact on water quality as
39 determined by the director. Short-term or temporary activities include, but
40 are not limited to, maintenance of existing structures, limited road and trail
41 reconstruction, soil stabilization measures, and habitat enhancement struc-
43 (22) "Silviculture" means those activities associated with the
44 regeneration, growing and harvesting of trees and timber including, but not
45 limited to, disposal of logging slash, preparing sites for new stands of trees
46 to be either planted or allowed to regenerate through natural means, road con-
47 struction and road maintenance, drainage of surface water which inhibits tree
48 growth or logging operations, fertilization, application of herbicides or pes-
49 ticides, all logging operations, and all forest management techniques employed
50 to enhance the growth of stands of trees or timber.
51 (23) "Soil conservation commission" means an agency of state government as
52 created in section 22-2718, Idaho Code.
53 (24) "Soil conservation district" means an entity of state government as
54 defined in section 22-2717, Idaho Code.
55 (25) "State" means the state of Idaho.
1 (26) "State water quality management plan" means the state management plan
2 developed and updated by the department in accordance with sections 205, 208,
3 and 303 of the federal clean water act.
4 (27) "Total maximum daily load (TMDL)" means a plan for a water body not
5 fully supporting designated beneficial uses and includes the sum of the indi-
6 vidual wasteload allocations for point sources, load allocations for nonpoint
7 sources, and natural background levels of the pollutant impacting the water
8 body. Pollutant allocations established through TMDLs shall be at a level nec-
9 essary to implement the applicable water quality standards for the identified
10 pollutants with seasonal variations and a margin of safety to account for
11 uncertainty concerning the relationship between the pollutant loading and
12 water quality standards.
13 (28) "Waters or water body" means all the accumulations of surface water,
14 natural and artificial, public and private, or parts thereof which are wholly
15 or partially within, flow through or border upon this state. For the purposes
16 of this chapter, water bodies shall not include municipal or industrial waste-
17 water treatment or storage structures or private reservoirs, the operation of
18 which has no effect on waters of the state.
19 (29) "Water pollution" is such alteration of the thermal, chemical, bio-
20 logical or radioactive properties of any waters of the state, or such dis-
21 charge or release of any contaminant into the waters of the state as will or
22 is likely to create a nuisance or render such waters harmful or detrimental or
23 injurious to public health, safety or welfare or to domestic, commercial,
24 industrial, recreational, aesthetic or other legitimate uses or to livestock,
25 wild animals, birds, fish or other aquatic life.
26 (30) "Watersheds" means the land area from which water flows into a stream
27 or other body of water which drains the area. For the purposes of this chap-
28 ter, the area of watersheds shall be recommended by the basin advisory group
29 described in section 39-3613, Idaho Code.
30 SECTION 2. That Section 39-3620, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 39-3620. APPROVAL PROVISIONS FOR BEST MANAGEMENT PRACTICES FOR NEW
33 NONPOINT SOURCE ACTIVITIES ON OR AFFECTING OUTSTANDING RESOURCE WATERS. No
34 person may conduct a new nonpoint source activity on or affecting an outstand-
35 ing resource water, except for a short-term or temporary activity as set forth
36 in section 39-3602, Idaho Code, prior to approval by the designated
37 state agency as provided in this section.
38 (1) Within six (6) months of designation of an outstanding resource water
39 by the legislature, the designated state agency shall develop
40 best management practices for reasonably foreseeable new nonpoint source
41 activities. In developing best management practices the designated state
42 agencies shall:
43 (a) Solicit technical advice from state and federal agencies, research
44 institutions, and universities and consult with affected landowners, land
45 managers, operators, and the public; and
46 (b) Shall assure that all public participation processes required by law
47 have been completed, but if no public participation process is required by
48 law, will require public notification and the opportunity to comment;
49 (c) Recommend proposed best management practices to the board of health
50 and welfare.
51 (2) The board of health and welfare and designated state
52 agencies shall adopt the proposed best management practices that are in com-
53 pliance with the rules and regulations governing water quality standards, and
1 based on the recommendations of the designated state agency and
2 the comments received during the public participation process;
3 (3) After adoption, these best management practices will be known as the
4 outstanding resource water best management practices and will be published by
5 the designated state agency. Outstanding resource water approved
6 best management practices will be reviewed and revised where needed by the
7 designated state agency every four (4) years in consultation with
8 the department, landowners, federal managers, operators and the public to
9 determine conformance with objectives of this act;
10 (4) Following adoption of best management practices, the designated
11 state agency shall require implementation of applicable outstanding
12 resource water best management practices which will assure that water quality
13 of an outstanding resource water is not lowered;
14 (5) Where outstanding resource water best management practices have not
15 been adopted as set forth in subsections (1) through (4) of this section, the
16 designated state agency shall:
17 (a) Assure that all public participation processes required by law have
18 been completed, but if no public participation process is required by law,
19 the designated state agency shall provide for public notifi-
20 cation of the new activity and the opportunity to comment;
21 (b) Determine that the site-specific best management practices selected
22 for a new nonpoint source activity are designed to ensure that water qual-
23 ity of the outstanding resource water is not lowered; and
24 (c) Provide for review by the department that the activity is in compli-
25 ance with rules and regulations governing water quality standards.
26 (6) When the applicable outstanding resource water best management prac-
27 tices are applied, the landowner, land manager, or operator applying those
28 practices will be in compliance with the provisions of this act. In the event
29 water quality is lowered as a result of management activities ,
30 the outstanding resource water best management practices will be revised
31 within a time frame established by the designated state agency to
32 ensure water quality is restored.
33 SECTION 3. That Chapter 36, Title 39, Idaho Code, be, and the same is
34 hereby amended by the addition thereto of a NEW SECTION , to be
35 known and designated as Section 39-3617A, Idaho Code, and to read as follows:
36 39-3617A. DESIGNATION OF THE SELWAY RIVER. The Selway River, from the
37 headwaters to the western wilderness boundary at Rush Creek is designated as
38 an outstanding resource water.
39 SECTION 4. That Chapter 36, Title 39, Idaho Code, be, and the same is
40 hereby amended by the addition thereto of a NEW SECTION , to be
41 known and designated as Section 39-3617B, Idaho Code, and to read as follows:
42 39-3617B. DESIGNATION OF THE MIDDLE FORK OF THE SALMON RIVER. The Middle
43 Fork of the Salmon River, from the confluence of Bear Valley and Marsh Creeks
44 to its confluence with the Salmon River, is designated as an outstanding
45 resource water.
46 SECTION 5. That Chapter 36, Title 39, Idaho Code, be, and the same is
47 hereby amended by the addition thereto of a NEW SECTION , to be
48 known and designated as Section 39-3617D, Idaho Code, and to read as follows:
49 39-3617D. DESIGNATION OF WHITE CAP CREEK. White Cap Creek, from the
1 headwaters to its confluence with the Selway River is designated as an out-
2 standing resource water.
3 SECTION 6. That Chapter 36, Title 39, Idaho Code, be, and the same is
4 hereby amended by the addition thereto of a NEW SECTION , to be
5 known and designated as Section 39-3617E, Idaho Code, and to read as follows:
6 39-3617E. DESIGNATION OF BEAR CREEK. Bear Creek, from the headwaters to
7 its confluence with the Selway River, is designated as an outstanding resource
9 SECTION 7. That Chapter 36, Title 39, Idaho Code, be, and the same is
10 hereby amended by the addition thereto of a NEW SECTION , to be
11 known and designated as Section 39-3617F, Idaho Code, and to read as follows:
12 39-3617F. DESIGNATION OF MOOSE CREEK. Moose Creek, from the headwaters to
13 its confluence with the Selway River is designated as an outstanding resource
STATEMENT OF PURPOSE
The proposed legislation designates reaches of the Selway
River, Middle Fork of the Salmon River, White Cap Creek, Bear
Creek, and Moose Creek as outstanding resource waters; to include
the Idaho Outfitters and Guides licensing board for outfitting
activities as the designated agency; and to provide an amendment
to provide for state agencies developing best management
There is no fiscal impact to the General Fund.
CONTACT: Jim Yost
Division of Environmental Quality
STATEMENT OF PURPOSE/FISCAL NOTE