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H0458.....................................................by WAYS AND MEANS
TOTAL MAXIMUM DAILY LOADS - Amends existing law relating to water quality
to provide a process for the publication of notice of total maximum daily
loads by the director of the Department of Environmental Quality; to
provide for a record; to clarify that designated rulemaking provisions do
not apply to total maximum daily loads under this section; to provide for
appeals; to provide specific application and a clarification; to strike
adoption processes through the Administrative Procedure Act; and to provide
for integration of processes to be used for achieving water quality
standards.
04/30 House intro - 1st rdg - to printing
Rpt prt - to Env Aff
Rpt out - rec d/p - to 2nd rdg
Rls susp - PASSED - 68-0-2
AYES -- Andersen(Guyon), Barraclough(Schanz), Barrett, Bauer, Bedke,
Bell, Bieter, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon,
Clark, Collins, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson,
Ellsworth, Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood,
Henbest, Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst,
Martinez(Echohawk), McGeachin, McKague, Meyer, Miller, Mitchell,
Moyle, Naccarato, Nielsen, Raybould, Ridinger, Ring, Ringo, Roberts,
Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd(Buell), Shirley,
Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Tilman,
Trail, Wills, Wood
NAYS -- None
Absent and excused -- Crow, Mr. Speaker
Floor Sponsor - Ellsworth
Title apvd - to Senate
05/01 Senate intro - 1st rdg - to Res/Env
Rpt out - rec d/p - to 2nd rdg
05/02 2nd rdg - to 3rd rdg
Rls susp - PASSED - 34-0-1
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai,
Marley, McKenzie, McWilliams, Noble, Noh, Pearce(Banner), Richardson,
Sorensen, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Schroeder
Floor Sponsor - Noh
Title apvd - to House
05/03 To enrol - Rpt enrol - Sp signed - Pres signed
05/05 To Governor
05/07 Governor signed
Session Law Chapter 351
Effective: 07/01/03
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 458
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO WATER QUALITY; AMENDING SECTION 39-3611, IDAHO CODE, TO PROVIDE A
3 PROCESS FOR THE PUBLICATION OF NOTICE OF TOTAL MAXIMUM DAILY LOADS BY THE
4 DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY, TO PROVIDE FOR A
5 RECORD, TO CLARIFY THAT DESIGNATED RULEMAKING PROVISIONS DO NOT APPLY TO
6 TOTAL MAXIMUM DAILY LOADS UNDER THIS SECTION, TO PROVIDE APPEALS AND TO
7 PROVIDE A SPECIFIC APPLICATION AND A CLARIFICATION; AMENDING SECTION
8 39-3612, IDAHO CODE, TO STRIKE ADOPTION PROCESSES THROUGH THE ADMINISTRA-
9 TIVE PROCEDURE ACT AND TO PROVIDE FOR INTEGRATION OF PROCESSES TO BE USED
10 FOR ACHIEVING WATER QUALITY STANDARDS; DECLARING AN EMERGENCY AND PROVID-
11 ING AN EFFECTIVE DATE.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 39-3611, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
16 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
17 Code, the director shall, in accordance with the priorities set forth in sec-
18 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and 39-3616,
19 Idaho Code, and as required by the federal clean water act, develop a total
20 maximum daily load to control point source and nonpoint sources of pollution
21 on the water body.
22 (2) Upon the completion of a total maximum daily load, the director shall
23 publish notice of the final decision on the TMDL in the Idaho administrative
24 bulletin and provide written notice to members of the applicable watershed
25 advisory group. The director's final decision shall be based upon a record
26 that provides the basis for the total maximum daily load. The rulemaking pro-
27 visions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
28 TMDLs. The director's final decision regarding a TMDL may be appealed to the
29 board of environmental quality in accordance with section 39-107(5), Idaho
30 Code, and the rules governing such appeals. The time for appeal to the board
31 shall commence upon publication in the administrative bulletin. The board's
32 final decision is subject to judicial review under section 39-107(6), Idaho
33 Code. The provisions of this subsection shall apply to all total maximum daily
34 loads developed by the director after January 1, 1995. Provided however, that
35 the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
36 shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
37 from the head of the Spokane River. Provided further, that nothing herein
38 shall modify the requirement that water quality standards be promulgated as
39 rules of the department pursuant to title 67, chapter 52, Idaho Code.
40 (3) For water bodies where an applicable water quality standard has not
41 been attained due to impacts that occurred prior to 1972, no further restric-
42 tions under a total maximum daily load process shall be placed on a point
43 source discharge unless the point source contribution of a pollutant exceeds
2
1 twenty-five percent (25%) of the total load for that pollutant. Existing uses
2 shall be maintained on all such water bodies.
3 (4) Total maximum daily load processes developed pursuant to this section
4 shall include, but not be limited to:
5 (1a) Identification of pollutant(s) impacting the water body;
6 (2b) An inventory of all point and nonpoint sources of the identified
7 pollutant, if practical, or an analysis of the land types, land uses and
8 geographical features within the watershed that may be contributing iden-
9 tified pollutants to the water body;
10 (3c) An analysis of why current control strategies are not effective in
11 assuring full support of designated beneficial uses;
12 (4d) A plan to monitor and evaluate progress toward water quality prog-
13 ress and to ascertain when designated beneficial uses will be fully sup-
14 ported;
15 (5e) Pollution control strategies for both point sources and nonpoint
16 sources for reducing those sources of pollution;
17 (6f) Identification of the period of time necessary to achieve full sup-
18 port of designated beneficial uses; and
19 (7g) An adequate margin of safety to account for uncertainty.
20 (5) Point source discharges for which a national pollutant discharge
21 elimination system permit is approved after January 1, 1995, shall be deemed
22 to have met the requirements of this section.
23 SECTION 2. That Section 39-3612, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 39-3612. INTEGRATION OF TOTAL MAXIMUM DAILY LOAD PROCESSES WITH OTHER
26 PROGRAMS. Upon completion of total maximum daily load processes as set forth
27 in section 39-3611, Idaho Code, the director shall, subject to the provisions
28 of chapter 52, title 67, Idaho Code, adopt integrate such processes as part of
29 into the state's water quality management plan developed pursuant to the fed-
30 eral clean water act. Upon such adoption, the provisions of these Total maxi-
31 mum daily load processes shall be enforced through normal enforcement prac-
32 tices of used by all designated agencies as set forth in the state's for
33 achieving water quality management plan standards.
34 SECTION 3. An emergency existing therefor, which emergency is hereby
35 declared to exist, this act shall be in full force and effect on and after
36 July 1, 2003.
STATEMENT OF PURPOSE
RS 13332C3
The proposed legislation clarifies that total maximum daily loads
(TMDLs) in Idaho are not rules subject to the rule making
requirements of the Administrative Procedures Act. It
establishes an adoption process by the Director of the Department
of Environmental Quality that allows the TMDL to serve as a plan
to assist in attaining compliance with water quality standards.
The adoption process will allow thirty days for public comment
and a public meeting if requested. The Director's final decision
regarding TMDLs may be appealed by an aggrieved party to the
Board of Environmental Quality and then onto district court.
FISCAL IMPACT
There is no fiscal impact if this legislation passes. If the
legislation fails to pass, the recent Supreme Court decision will
cost the Idaho Department of Environmental Quality approximately
$400,000 per year for promulgation of TMDLs as rules on an
ongoing basis and a one-time cost of up to $784,000 for
publishing costs if applied to all past TMDLs.
Contact
Name: David Mabe, Idaho Department of Environmental Quality
Phone: (208) 373-0194
STATEMENT OF PURPOSE/FISCAL NOTE H 458