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S1428..........................................by RESOURCES AND ENVIRONMENT
WATER QUALITY - TOTAL MAXIMUM DAILY LOADS - Amends existing law to provide
a process for the development of total maximum daily loads by the director
of the Department of Environmental Quality; to clarify that designated
rulemaking provisions do not apply to development of total maximum daily
loads; to provide for annual reports to the Legislature; to provide for
rejection of developed total daily maximum loads by concurrent resolution;
to provide for the appeal of the director's decision regarding the
development of total maximum daily loads; to provide for the integration of
total maximum daily load processes into the state's water quality
management plan; to delete reference to enforcement of total maximum daily
load processes; to provide for the use of total maximum daily load
processes by state and federal agencies; and to provide for the
implementation of total maximum daily load processes.
02/11 Senate intro - 1st rdg - to printing
02/12 Rpt prt - to Res/Env
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1428
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER QUALITY; AMENDING SECTION 39-3611, IDAHO CODE, TO PROVIDE A
3 PROCESS FOR THE DEVELOPMENT OF TOTAL MAXIMUM DAILY LOADS BY THE DIRECTOR
4 OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY, TO CLARIFY THAT DESIGNATED
5 RULEMAKING PROVISIONS DO NOT APPLY TO DEVELOPMENT OF TOTAL MAXIMUM DAILY
6 LOADS UNDER THE SECTION, TO PROVIDE FOR THE APPEAL OF THE DIRECTOR'S DECI-
7 SION REGARDING THE DEVELOPMENT OF TOTAL MAXIMUM DAILY LOADS, TO PROVIDE
8 FOR ANNUAL REPORTS TO THE LEGISLATURE AND TO PROVIDE FOR REJECTION OF
9 DEVELOPED TOTAL MAXIMUM DAILY LOADS BY CONCURRENT RESOLUTION; AMENDING
10 SECTION 39-3612, IDAHO CODE, TO STRIKE REFERENCE TO THE DIRECTOR'S ADOP-
11 TION OF TOTAL MAXIMUM DAILY LOAD PROCESSES SUBJECT TO THE ADMINISTRATIVE
12 PROCEDURE ACT, TO PROVIDE FOR THE INTEGRATION OF TOTAL MAXIMUM DAILY LOAD
13 PROCESSES INTO THE STATE'S WATER QUALITY MANAGEMENT PLAN, TO STRIKE REFER-
14 ENCE TO CERTAIN ENFORCEMENT OF TOTAL MAXIMUM DAILY LOAD PROCESSES, TO PRO-
15 VIDE FOR CERTAIN USE OF TOTAL MAXIMUM DAILY LOAD PROCESSES BY STATE AND
16 FEDERAL AGENCIES AND TO PROVIDE FOR IMPLEMENTATION OF TOTAL MAXIMUM DAILY
17 LOAD PROCESSES.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Section 39-3611, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
22 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
23 Code, the director shall, in accordance with the priorities set forth in sec-
24 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and 39-3616,
25 Idaho Code, and as required by the federal clean water act, develop a total
26 maximum daily load to control point source and nonpoint sources of pollution
27 on the water body.
28 (2) In addition to coordination with the basin advisory groups and water-
29 shed advisory groups in accordance with sections 39-3614 and 39-3616, Idaho
30 Code, the director shall provide notice to the public regarding the develop-
31 ment of the total maximum daily load, allow a minimum of thirty (30) days for
32 public comment, hold a public meeting if requested, and develop an administra-
33 tive record available to the public regarding the final total maximum daily
34 load decision that includes all the information or other material that pro-
35 vides the basis for the final decision and to provide a response to the public
36 comments received. The director may provide for public participation in addi-
37 tion to the participation required in this section. The rulemaking provisions
38 in sections 67-5220 through 67-5231, Idaho Code, shall not apply to total max-
39 imum daily loads developed under this section. The director's final decision
40 regarding a total maximum daily load may be appealed to the board of environ-
41 mental quality in accordance with section 39-107(5), Idaho Code, and the rules
42 governing such appeals.
43 (3) For water bodies where an applicable water quality standard has not
2
1 been attained due to impacts that occurred prior to 1972, no further restric-
2 tions under a total maximum daily load process shall be placed on a point
3 source discharge unless the point source contribution of a pollutant exceeds
4 twenty-five percent (25%) of the total load for that pollutant. Existing uses
5 shall be maintained on all such water bodies.
6 (4) Total maximum daily load processes developed pursuant to this section
7 shall include, but not be limited to:
8 (1a) Identification of pollutant(s) impacting the water body;
9 (2b) An inventory of all point and nonpoint sources of the identified
10 pollutant, if practical, or an analysis of the land types, land uses and
11 geographical features within the watershed that may be contributing iden-
12 tified pollutants to the water body;
13 (3c) An analysis of why current control strategies are not effective in
14 assuring full support of designated beneficial uses;
15 (4d) A plan to monitor and evaluate progress toward water quality prog-
16 ress and to ascertain when designated beneficial uses will be fully sup-
17 ported;
18 (5e) Pollution control strategies for both point sources and nonpoint
19 sources for reducing those sources of pollution;
20 (6f) Identification of the period of time necessary to achieve full sup-
21 port of designated beneficial uses; and
22 (7g) An adequate margin of safety to account for uncertainty.
23 (5) Point source discharges for which a national pollutant discharge
24 elimination system permit is approved after January 1, 1995, shall be deemed
25 to have met the requirements of this section.
26 (6) By January 30 of every year the department shall provide to the leg-
27 islature a report that identifies all total maximum daily loads developed by
28 the department during the preceding calendar year. The legislature may review
29 any such total maximum daily load and may adopt a concurrent resolution
30 rejecting any such total maximum daily load where it is determined it does not
31 meet the requirements set forth in this chapter. A total maximum daily load
32 rejected by concurrent resolution shall not be valid or effective for purposes
33 of this chapter or the clean water act.
34 SECTION 2. That Section 39-3612, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 39-3612. INTEGRATION OF TOTAL MAXIMUM DAILY LOAD PROCESSES WITH OTHER
37 PROGRAMS. Upon completion of total maximum daily load processes as set forth
38 in section 39-3611, Idaho Code, the director shall, subject to the provisions
39 of chapter 52, title 67, Idaho Code, adopt integrate such processes as part of
4
STATEMENT OF PURPOSE
RS 11612C2
The proposed legislation will clarify a nonregulatory
process for the approval of total maximum daily loads
(TMDLs). In a recent court case it was determined that all
TMDLs should be finalized using the rule making process.
This legislation will provide a public participation
process, specify that TMDLs are plans for the improvement of
water quality to be finalized by the Director, provide a clear
appeal route for aggrieved parties and remove a reference to
enforcement in the previous statute. It also clarifies that
completed TMDLs are a part of the state’s water quality management
plan.
FISCAL IMPACT
Failure to pass this legislation will result in a cost of
$50,000 to $300,000 per year in staff, administrative code and
other costs that will be incurred as result of Judge Lusters
decision. Passage will negate the need for additional funding.
Contact
Name: David Mabe
Department of Environmental Quality
Phone: 373—0194
STATEMENT OF PURPOSE/FISCAL NOTE Bill No.
S 1428