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H0544aa,aaS........................................by ENVIRONMENTAL AFFAIRS
WATERSHED ADVISORY GROUPS - Amends existing law to define "subbasin
assessment"; to provide identification of the period of time necessary to
achieve full support of designated beneficial uses which takes into account
any expected changes to water quality standards; to provide that each total
maximum daily load (TMDL) shall be developed in consultation with the
watershed advisory group for the watershed in which the water bodies are
located; to provide that the director of the Department of Environmental
Quality, with the advice of the appropriate basin advisory groups, shall
name watershed advisory groups which will generally advise the department
on the appropriateness, attainability and status of existing and designated
beneficial uses within the watershed and on the development and
implementation of TMDLs; to provide that the director of the Department of
Environmental Quality, with the advice of the appropriate basin advisory
group, shall name watershed advisory groups early enough to allow
consultation to occur prior to public comment on and submission it a TMDL
and any supporting subbasin assessment to the Environmental Protection
Agency for approval; to revise representatives of watershed advisory
groups; and to provide that watershed advisory groups shall consult with
the director and participate in the development of each TMDL, and any
supporting subbasin assessment, for water bodies within the watershed.
01/27 House intro - 1st rdg - to printing
01/28 Rpt prt - to Env Aff
02/03 Rpt out - to Gen Ord
02/20 Rpt out amen - to engros
02/23 Rpt engros - 1st rdg - to 2nd rdg as amen
02/24 2nd rdg - to 3rd rdg as amen
03/01 3rd rdg as amen PASSED - 55-14-1
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow,
Cuddy, Deal, Denney, Eberle, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Gagner, Garrett, Harwood, Jones, Kellogg,
Kulczyk, Lake, McGeachin, McKague, Meyer, Miller, Moyle, Nielsen,
Raybould, Ridinger, Ring, Roberts, Rydalch, Sali, Schaefer, Shepherd,
Skippen, Smith(24), Smylie, Snodgrass, Stevenson, Trail(Bennett),
Wills, Wood, Mr. Speaker
NAYS -- Boe, Douglas, Henbest, Jaquet, Langford, Langhorst, Martinez,
Mitchell, Naccarato, Pasley-Stuart, Ringo, Robison, Sayler, Smith(30)
Absent and excused -- Shirley
Floor Sponsors - Denney & Edmunson
Title apvd - to Senate
03/02 Senate intro - 1st rdg - to Res/Env
03/16 Rpt out - to 14th Ord
03/17 Rpt out amen - to 1st rdg as amen
03/18 1st rdg - to 2nd rdg as amen
Rls susp - PASSED - 25-5-5
AYES -- Bailey, Brandt, Burtenshaw, Cameron, Compton, Darrington,
Davis, Gannon, Geddes, Goedde, Hill, Ingram, Keough, Little, Lodge,
McKenzie, McWilliams, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Sweet, Williams
NAYS -- Burkett, Kennedy, Marley, Stennett, Werk
Absent and excused -- Andreason, Bunderson, Calabretta, Malepeai,
Noble
Floor Sponsor - Pearce
Title apvd - to House
03/19 House concurred in Senate amens - to engros
Rpt engros - 1st rdg - to 2nd rdg as amen
03/20 2nd rdg - to 3rd rdg as amen
Rls susp - PASSED - 55-8-7
AYES -- Andersen, Barraclough, Barrett, Bayer, Bedke, Bell, Black,
Block, Boe, Bolz, Bradford, Campbell, Cannon, Collins, Crow, Cuddy,
Deal, Denney, Douglas, Edmunson, Ellsworth, Eskridge, Field(18),
Field(23), Gagner, Garrett, Harwood, Jones, Kellogg, Kulczyk, Lake,
Martinez, McGeachin, McKague, Meyer, Miller, Mitchell, Moyle,
Naccarato, Nielsen, Raybould, Ring, Rydalch, Sali, Schaefer,
Shepherd, Shirley, Skippen, Smith(30), Smylie, Snodgrass, Stevenson,
Wills, Wood, Mr. Speaker
NAYS -- Henbest, Jaquet, Langford, Langhorst, Pasley-Stuart, Ringo,
Robison, Sayler
Absent and excused -- Bauer, Clark, Eberle, Ridinger, Roberts,
Smith(24), Trail
Floor Sponsor - Denney
Title apvd - To enrol - Rpt enrol - Sp signed
03/20 Pres signed
03/22 To Governor
04/02 Governor VETOED
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 544
BY ENVIRONMENTAL AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO WATER QUALITY; AMENDING SECTION 39-3607, IDAHO CODE, TO PROVIDE
3 THAT THE SURVEYS OR ASSESSMENTS SHALL BE PREPARED IN CONSULTATION WITH THE
4 WATERSHED ADVISORY GROUP FOR THE WATERSHED AND TO PROVIDE THAT SURVEYS OR
5 ASSESSMENTS SHALL NOT BE DISSEMINATED FOR PUBLIC COMMENT AND SHALL NOT BE
6 SUBMITTED TO GOVERNMENT AGENCIES WITHOUT THE APPROVAL OF AT LEAST FIFTY
7 PERCENT OF THE MEMBERS OF THE WATERSHED ADVISORY GROUP; AMENDING SECTION
8 39-3609, IDAHO CODE, TO PROVIDE THAT NO NOTIFICATION SHALL BE PROVIDED
9 WITHOUT THE APPROVAL OF AT LEAST FIFTY PERCENT OF THE WATERSHED ADVISORY
10 GROUP; AMENDING SECTION 39-3611, IDAHO CODE, TO PROVIDE THAT EACH TOTAL
11 MAXIMUM DAILY LOAD SHALL BE DEVELOPED IN CONSULTATION WITH THE WATERSHED
12 ADVISORY GROUP FOR THE WATERSHED IN WHICH THE WATER BODIES ARE LOCATED AND
13 TO PROVIDE THAT TOTAL MAXIMUM DAILY LOADS SHALL NOT BE DISSEMINATED FOR
14 PUBLIC COMMENT AND SHALL NOT BE SUBMITTED TO GOVERNMENT AGENCIES WITHOUT
15 THE APPROVAL OF AT LEAST FIFTY PERCENT OF THE MEMBERS OF THE WATERSHED
16 ADVISORY GROUP; AMENDING SECTION 39-3615, IDAHO CODE, TO PROVIDE THAT THE
17 DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY WITH THE ADVICE OF THE
18 APPROPRIATE BASIN ADVISORY GROUP SHALL NAME WATERSHED ADVISORY GROUPS
19 WHICH WILL GENERALLY ADVISE THE DEPARTMENT ON THE APPROPRIATENESS,
20 ATTAINABILITY AND STATUS OF EXISTING AND DESIGNATED BENEFICIAL USES WITHIN
21 THE WATERSHED AND ON THE DEVELOPMENT AND IMPLEMENTATION OF TMDLS; AND
22 AMENDING SECTION 39-3616, IDAHO CODE, TO PROVIDE THAT WATERSHED ADVISORY
23 GROUPS SHALL CONSULT WITH THE DIRECTOR AND PARTICIPATE IN THE DEVELOPMENT
24 OF EACH SURVEY OR ASSESSMENT OF BENEFICIAL USE ATTAINABILITY OR STATUS,
25 AND EACH TMDL, FOR WATER BODIES WITHIN THE WATERSHED.
26 Be It Enacted by the Legislature of the State of Idaho:
27 SECTION 1. That Section 39-3607, Idaho Code, be, and the same is hereby
28 amended to read as follows:
29 39-3607. MONITORING TO DETERMINE SUPPORT OF BENEFICIAL USES. The director
30 shall conduct a beneficial use attainability and status survey to identify
31 appropriate designated uses and to determine the status of designated benefi-
32 cial uses in each water body. Measures to determine appropriate designated
33 uses and the status of designated beneficial uses shall include appropriate
34 water quality standards as identified in the rules of the department in con-
35 junction with biological or aquatic habitat measures that may include, but are
36 not limited to: stream width, stream depth, stream shade, sediment, bank sta-
37 bility, water flows, physical characteristics of the stream that affect habi-
38 tat for fish, macroinvertebrate species or other aquatic life, and the variety
39 and number of fish or other aquatic life.
40 Previous assessments of beneficial use attainability and status which are
41 of a quality and content acceptable to the director shall constitute the
42 baseline data against which future assessments shall be made to determine
43 changes in the water body and what beneficial uses can be attained in it. In
2
1 addition, the director, to the extent possible, may determine whether changes
2 in the condition of the water body are the result of past or ongoing point or
3 nonpoint source activities. Each survey or assessment of beneficial use
4 attainability or status shall be prepared in consultation with the watershed
5 advisory group for the watershed in which the water body is located. No sur-
6 vey or assessment shall be disseminated for public comment, submitted to the
7 environmental protection agency or other public agency or used by the director
8 in exercising the authorities conferred by this chapter, without the approval
9 of at least fifty percent (50%) of the members of the watershed advisory
10 group. The director shall also seek information from appropriate public agen-
11 cies regarding land uses and geological or other information for the watershed
12 which may affect water quality and the ability of the water body in question
13 to fully support or attain designated beneficial uses. In carrying out the
14 provisions of this section, the director may contract with private enterprises
15 or public agencies to provide the desired data.
16 SECTION 2. That Section 39-3609, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 39-3609. IDENTIFICATION OF WATER BODIES WHERE BENEFICIAL USES ARE NOT
19 FULLY SUPPORTED. In accordance with the provisions set forth in the federal
20 clean water act and the public participation provisions set forth in this
21 chapter, the director shall notify the appropriate public agencies of any
22 water bodies in which the designated beneficial uses are not fully supported.
23 No such notification shall be provided without the approval of at least fifty
24 percent (50%) of the watershed advisory group for the watershed in which the
25 water body is located and public involvement as provided in section 39-3616,
26 Idaho Code. For water bodies so identified, the director shall place such
27 water bodies into one (1) of the following priority classifications for the
28 development of total maximum daily load or equivalent processes:
29 (1) "High," wherein definitive and generally accepted water quality data
30 indicate that unless remedial actions are taken in the near term there will be
31 significant risk to designated or existing beneficial uses of a particular
32 water body. The director in establishing this category, shall consider public
33 involvement as set forth in this chapter.
34 (2) "Medium," wherein water quality data indicate that unless remedial
35 actions are taken there will be risks to designated or existing beneficial
36 uses.
37 (3) "Low," wherein limited or subjective water quality data indicate des-
38 ignated uses are not fully supported, but that risks to human health, aquatic
39 life, or the recreational, economic or aesthetic importance of a particular
40 water body are minimal.
41 SECTION 3. That Section 39-3611, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
44 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
45 Code, the director shall, in accordance with the priorities set forth in sec-
46 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and 39-3616,
47 Idaho Code, and as required by the federal clean water act, develop a total
48 maximum daily load to control point source and nonpoint sources of pollution
49 on the water body.
50 (2) Upon the completion of a total maximum daily load, the director shall
51 publish notice of the final decision on the TMDL in the Idaho administrative
3
1 bulletin and provide written notice to members of the applicable watershed
2 advisory group. The director's final decision shall be based upon a record
3 that provides the basis for the total maximum daily load. The rulemaking pro-
4 visions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
5 TMDLs. The director's final decision regarding a TMDL may be appealed to the
6 board of environmental quality in accordance with section 39-107(5), Idaho
7 Code, and the rules governing such appeals. The time for appeal to the board
8 shall commence upon publication in the administrative bulletin. The board's
9 final decision is subject to judicial review under section 39-107(6), Idaho
10 Code. The provisions of this subsection shall apply to all total maximum daily
11 loads developed by the director after January 1, 1995. Provided however, that
12 the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
13 shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
14 from the head of the Spokane River. Provided further, that nothing herein
15 shall modify the requirement that water quality standards be promulgated as
16 rules of the department pursuant to title 67, chapter 52, Idaho Code.
17 (3) For water bodies where an applicable water quality standard has not
18 been attained due to impacts that occurred prior to 1972, no further restric-
19 tions under a total maximum daily load process shall be placed on a point
20 source discharge unless the point source contribution of a pollutant exceeds
21 twenty-five percent (25%) of the total load for that pollutant. Existing uses
22 shall be maintained on all such water bodies.
23 (4) Total maximum daily load processes developed pursuant to this section
24 shall include, but not be limited to:
25 (a) Identification of pollutant(s) impacting the water body;
26 (b) An inventory of all point and nonpoint sources of the identified pol-
27 lutant, if practical, or an analysis of the land types, land uses and geo-
28 graphical features within the watershed that may be contributing identi-
29 fied pollutants to the water body;
30 (c) An analysis of why current control strategies are not effective in
31 assuring full support of designated beneficial uses;
32 (d) A plan to monitor and evaluate progress toward water quality progress
33 and to ascertain when designated beneficial uses will be fully supported;
34 (e) Pollution control strategies for both point sources and nonpoint
35 sources for reducing those sources of pollution;
36 (f) Identification of the period of time necessary to achieve full sup-
37 port of designated beneficial uses; and
38 (g) An adequate margin of safety to account for uncertainty.
39 (5) Point source discharges for which a national pollutant discharge
40 elimination system permit is approved after January 1, 1995, shall be deemed
41 to have met the requirements of this section. Each total maximum daily load
42 shall be developed in consultation with the watershed advisory group for the
43 watershed in which the water bodies are located. No total maximum daily load
44 shall be disseminated for public comment, submitted to the environmental pro-
45 tection agency or any other public agency, or used by the director in exercis-
46 ing the authorities conferred by this chapter, without the approval of at
47 least fifty percent (50%) of the members of the watershed advisory group.
48 SECTION 4. That Section 39-3615, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 39-3615. CREATION OF WATERSHED ADVISORY GROUPS. The director, with the
51 advice of the appropriate basin advisory group, may shall name watershed advi-
52 sory groups which will generally advise the department on the appropriateness,
53 attainability and status of existing and designated beneficial uses within
4
1 the watershed and on the development and implementation of TMDLs and other
2 state water quality plans, including those specific actions needed to control
3 point and nonpoint sources of pollution within the watersheds of those water
4 bodies where designated beneficial uses are not fully supported. Members of
5 each watershed advisory group shall be representative of the industries and
6 interests affected by the management of that watershed, along with representa-
7 tives of local government and the land managing or regulatory agencies with an
8 interest in the management of that watershed and the quality of the water bod-
9 ies within it. Members of each watershed advisory group shall serve and shall
10 not be reimbursed for their expenses during their term of service.
11 SECTION 5. That Section 39-3616, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 39-3616. DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
14 group shall generally be responsible for recommending those specific actions
15 needed to control point and nonpoint sources of pollution within the watershed
16 so that, within reasonable periods of time, designated beneficial uses are
17 fully supported and other state water quality plans are achieved. Watershed
18 advisory groups shall, as described in this chapter, consult with the director
19 and participate in the development of each survey or assessment of beneficial
20 use attainability or status, and each TMDL, for water bodies within the water-
21 shed and shall develop and recommend actions needed to effectively control
22 sources of pollution. In carrying out the provisions of this section, the
23 director and the watershed advisory groups shall employ all means of public
24 involvement deemed necessary or required in chapter 52, title 67, Idaho Code,
25 and shall cooperate fully with the public involvement or planning processes of
26 other appropriate public agencies.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
Moved by Denney
Seconded by Edmunson
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENT TO H.B. NO. 544
1 AMENDMENT TO THE BILL
2 On page 4 of the printed bill, following line 26, insert:
3 "SECTION 6. An emergency existing therefor, which emergency is hereby
4 declared to exist, this act shall be in full force and effect on and after its
5 passage and approval.".
6 CORRECTION TO TITLE
7 On page 1, in line 21 following "TMDLS;" delete "AND" and in line 25 fol-
8 lowing "WATERSHED" insert: "; AND DECLARING AN EMERGENCY".
Moved by Pearce
Seconded by Cameron
IN THE SENATE
SENATE AMENDMENT TO H.B. NO. 544, As Amended
9 AMENDMENT TO THE BILL
10 On page 1 of the engrossed bill, delete lines 27 through 43 and delete
11 pages 2 through 4 and insert:
12 "SECTION 1. That Section 39-3602, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 39-3602. DEFINITIONS. Whenever used or referred to in this chapter,
15 unless a different meaning clearly appears from the context, the following
16 terms shall have the following meanings:
17 (1) "Applicable water quality standard" means those water quality stan-
18 dards identified in the rules of the department.
19 (2) "Best management practice" means practices, techniques or measures
20 developed, or identified, by the designated agency and identified in the state
21 water quality management plan which are determined to be a cost-effective and
22 practicable means of preventing or reducing pollutants generated from nonpoint
23 sources to a level compatible with water quality goals.
24 (3) "Board" means the board of environmental quality.
25 (4) "Department" means the department of environmental quality.
26 (5) "Designated agency" means the department of lands for timber harvest
27 activities, for oil and gas exploration and development and for mining activi-
28 ties; the soil conservation commission for grazing activities and for agricul-
29 tural activities; the transportation department for public road construction;
30 the department of agriculture for aquaculture; and the department of environ-
31 mental quality for all other activities.
32 (6) "Designated use or designated beneficial use" means those uses
33 assigned to waters as identified in the rules of the department whether or not
34 the uses are being attained. The department may adopt subcategories of a use.
]]]
2
1 (7) "Director" means the director of the department of environmental
2 quality, 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 appropri-
21 ate to the parameter. Statistical significance is defined as the ninety-five
22 percent (95%) confidence limit when significance is not otherwise defined for
23 the 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. It does not include naturally occurring events such as
38 floods, landslides, and wildfire including prescribed natural fire.
39 (14) "Nonpoint source activities" includes grazing, crop production, sil-
40 viculture, log storage or rafting, construction, mining, recreation, septic
41 systems, runoff from storms and other weather related events and other activi-
42 ties not subject to regulation under the federal national pollutant discharge
43 elimination system. Nonpoint source activities on waters designated as out-
44 standing resource waters do not include issuance of water rights permits or
45 licenses, allocation of water rights, operation of diversions, or impound-
46 ments.
47 (15) "Nonpoint source runoff" means water which may carry pollutants from
48 nonpoint source activities into the waters of the state.
49 (16) "Outstanding resource water" means a high quality water, such as
50 water of national and state parks and wildlife refuges and water of excep-
51 tional recreational or ecological significance, which has been so designated
52 by the legislature. It constitutes an outstanding national or state resource
53 that requires protection from point source and nonpoint source activities that
54 may lower water quality.
]]]
3
1 (17) "Person" means any individual, association, partnership, firm, joint
2 stock company, joint venture, trust, estate, political subdivision, public or
3 private corporation, state or federal governmental department, agency or
4 instrumentality, or any legal entity, which is recognized by law as the sub-
5 ject of rights and duties.
6 (18) "Point source" means any discernible, confined, and discrete convey-
7 ance including, but not limited to, any pipe, ditch, channel, tunnel, conduit,
8 well, discrete fissure, container, rolling stock, concentrated animal feeding
9 operation, or vessel or other floating craft, from which pollutants are, or
10 may be, discharged. This term does not include return flows from irrigated
11 agriculture, discharges from dams and hydroelectric generating facilities or
12 any source or activity considered a nonpoint source by definition.
13 (19) "Pollutant" means dredged spoil, solid waste, incinerator residue,
14 sewage, garbage, sewage sludge, munitions, chemical waste, biological mate-
15 rials, radioactive materials, heat, wrecked or discarded equipment, rock,
16 sand, silt, cellar dirt; and industrial, municipal and agricultural waste,
17 gases entrained in water; or other materials which, when discharged or
18 released to water in excessive quantities cause or contribute to water pollu-
19 tion. Provided however, biological materials shall not include live or occa-
20 sional dead fish that may accidentally escape into the waters of the state
21 from aquaculture facilities.
22 (20) "Reference stream or condition" means one (1) of the following:
23 (a) The minimum biological, physical and chemical conditions necessary to
24 fully support the designated beneficial uses; or
25 (b) A water body representing natural conditions with few impacts from
26 human activities and which are representative of the highest level of sup-
27 port attainable in the basin; or
28 (c) A water body representing minimum conditions necessary to fully sup-
29 port the designated beneficial uses.
30 In highly mineralized areas or in the absence of such reference streams or
31 water bodies, the director, in consultation with the basin advisory group and
32 the technical advisers to it, may define appropriate hypothetical reference
33 conditions or may use monitoring data specific to the site in question to
34 determine conditions in which the beneficial uses are fully supported.
35 (21) "Short-term or temporary activity" means an activity which is limited
36 in scope and is expected to have only minimal impact on water quality as
37 determined by the director. Short-term or temporary activities include, but
38 are not limited to, maintenance of existing structures, limited road and trail
39 reconstruction, soil stabilization measures, and habitat enhancement struc-
40 tures.
41 (22) "Silviculture" means those activities associated with the
42 regeneration, growing and harvesting of trees and timber including, but not
43 limited to, disposal of logging slash, preparing sites for new stands of trees
44 to be either planted or allowed to regenerate through natural means, road con-
45 struction and road maintenance, drainage of surface water which inhibits tree
46 growth or logging operations, fertilization, application of herbicides or pes-
47 ticides, all logging operations, and all forest management techniques employed
48 to enhance the growth of stands of trees or timber.
49 (23) "Soil conservation commission" means an agency of state government as
50 created in section 22-2718, Idaho Code.
51 (24) "Soil conservation district" means an entity of state government as
52 defined in section 22-2717, Idaho Code.
53 (25) "State" means the state of Idaho.
54 (26) "State water quality management plan" means the state management plan
]]]
4
1 developed and updated by the department in accordance with sections 205, 208,
2 and 303 of the federal clean water act.
3 (27) "Subbasin assessment" means a document that describes the watershed
4 or watersheds for which a total maximum daily load is proposed, the water
5 quality concerns and status of beneficial uses of individual water bodies, the
6 nature and location of pollutant sources, past and ongoing pollutant control
7 activities, and such other information that the director and the local water-
8 shed advisory group determine is pertinent to the analysis of water quality
9 and the development and implementation of a total maximum daily load.
10 (28) "Total maximum daily load (TMDL)" means a plan for a water body not
11 fully supporting designated beneficial uses and includes the sum of the indi-
12 vidual wasteload allocations for point sources, load allocations for nonpoint
13 sources, and natural background levels of the pollutant impacting the water
14 body. Pollutant allocations established through TMDLs shall be at a level nec-
15 essary to implement the applicable water quality standards for the identified
16 pollutants with seasonal variations and a margin of safety to account for
17 uncertainty concerning the relationship between the pollutant loading and
18 water quality standards.
19 (289) "Waters or water body" means all the accumulations of surface water,
20 natural and artificial, public and private, or parts thereof which are wholly
21 or partially within, flow through or border upon this state. For the purposes
22 of this chapter, water bodies shall not include municipal or industrial waste-
23 water treatment or storage structures or private reservoirs, the operation of
24 which has no effect on waters of the state.
25 (2930) "Water pollution" is such alteration of the thermal, chemical, bio-
26 logical or radioactive properties of any waters of the state, or such dis-
27 charge or release of any contaminant into the waters of the state as will or
28 is likely to create a nuisance or render such waters harmful or detrimental or
29 injurious to public health, safety or welfare or to domestic, commercial,
30 industrial, recreational, aesthetic or other legitimate uses or to livestock,
31 wild animals, birds, fish or other aquatic life.
32 (301) "Watersheds" means the land area from which water flows into a
33 stream or other body of water which drains the area. For the purposes of this
34 chapter, the area of watersheds shall be recommended by the basin advisory
35 group described in section 39-3613, Idaho Code.
36 SECTION 2. That Section 39-3611, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
39 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
40 Code, the director shall, in accordance with the priorities set forth in sec-
41 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and through
42 39-3616, Idaho Code, and as required by the federal clean water act, develop a
43 total maximum daily load to control point source and nonpoint sources of pol-
44 lution on pollutants to the water body.
45 (2) Upon the completion of a total maximum daily load, the director shall
46 publish notice of the final decision on the TMDL in the Idaho administrative
47 bulletin and provide written notice to members of the applicable watershed
48 advisory group. The director's final decision shall be based upon a record
49 that provides the basis for the total maximum daily load. The rulemaking pro-
50 visions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
51 TMDLs. The director's final decision regarding a TMDL may be appealed to the
52 board of environmental quality in accordance with section 39-107(5), Idaho
]]]
5
1 Code, and the rules governing such appeals. The time for appeal to the board
2 shall commence upon publication in the administrative bulletin. The board's
3 final decision is subject to judicial review under section 39-107(6), Idaho
4 Code. The provisions of this subsection shall apply to all total maximum daily
5 loads developed by the director after January 1, 1995. Provided however, that
6 the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
7 shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
8 from the head of the Spokane River. Provided further, that nothing herein
9 shall modify the requirement that water quality standards be promulgated as
10 rules of the department pursuant to title 67, chapter 52, Idaho Code.
11 (3) For water bodies where an applicable water quality standard has not
12 been attained due to impacts that occurred prior to 1972, no further restric-
13 tions under a total maximum daily load process shall be placed on a point
14 source discharge unless the point source contribution of a pollutant exceeds
15 twenty-five percent (25%) of the total load for that pollutant. Existing uses
16 shall be maintained on all such water bodies.
17 (4) Total maximum daily load processes developed pursuant to this section
18 shall include, but not be limited to:
19 (a) Identification of pollutant(s) impacting the water body;
20 (b) An inventory of all point and nonpoint sources of the identified pol-
21 lutant, if practical, or an analysis of the land types, land uses and geo-
22 graphical features within the watershed that may be contributing identi-
23 fied pollutants to the water body;
24 (c) An analysis of why current control strategies are not effective in
25 assuring full support of designated beneficial uses;
26 (d) A plan to monitor and evaluate progress toward water quality progress
27 and to ascertain when designated beneficial uses will be fully supported;
28 (e) Pollution control strategies for both point sources and nonpoint
29 sources for reducing those sources of pollution;
30 (f) Identification of the period of time necessary to achieve full sup-
31 port of designated beneficial uses which takes into account any expected
32 changes to applicable water quality standards; and
33 (g) An adequate margin of safety to account for uncertainty.
34 (5) Point source discharges for which a national pollutant discharge
35 elimination system permit is approved after January 1, 1995, shall be deemed
36 to have met the requirements of this section.
37 (6) Each TMDL and any supporting subbasin assessment shall be developed
38 in consultation with the watershed advisory group for the watershed in which
39 the water bodies are located. Consultation shall include, but shall not be
40 limited to: (a) providing the watershed advisory group with all available
41 information concerning applicable water quality standards, water quality data,
42 monitoring, assessments, reports, procedures and schedules for developing and
43 submitting the TMDL and any supporting subbasin assessment to the environmen-
44 tal protection agency; (b) utilizing the knowledge, expertise, experience and
45 information of the watershed advisory group in assessing the status,
46 attainability or appropriateness of water quality standards, and in developing
47 a TMDL and any supporting subbasin assessment; and (c) providing the watershed
48 advisory group with the opportunity to participate in drafting the documents
49 for the TMDL and any supporting subbasin assessment. No TMDL shall be pub-
50 lished for public comment or submitted for approval by the environmental pro-
51 tection agency until consultation, as herein defined, has occurred. If after
52 consultation, the watershed advisory group disagrees with the TMDL or any sup-
53 porting subbasin assessment, or has determined that applicable water quality
54 standards should be reevaluated or revised, such position and the basis there-
]]]
6
1 for shall be documented in the public notice of availability to the TMDL and
2 any supporting subbasin assessment for review and in any submission of the
3 same to the environmental protection agency. The director shall respond to the
4 points raised by the watershed advisory group, and document the response in
5 the final decision.
6 SECTION 3. That Section 39-3615, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 39-3615. CREATION OF WATERSHED ADVISORY GROUPS. The director, with the
9 advice of the appropriate basin advisory group, may shall name watershed advi-
10 sory groups which will generally advise the department on the appropriateness,
11 attainability and status of existing and designated beneficial uses within the
12 watershed, and on the development and implementation of TMDLs and other state
13 water quality plans, including those specific actions needed to control point
14 and nonpoint sources of pollution within the watersheds of those water bodies
15 where designated beneficial uses are not fully supported. Each watershed advi-
16 sory group shall be formed early enough to complete consultation, as defined
17 in subsection (6) of section 39-3611, Idaho Code, prior to the date the TMDL
18 and any supporting subbasin assessment is scheduled to be submitted to the
19 environmental protection agency for approval. If the members of the watershed
20 advisory group, with the concurrence of the basin advisory group, advise the
21 director that applicable water quality standards within the watershed are not
22 attainable or are inappropriate based upon supporting data, the director shall
23 initiate the process to assess such standards, and to change the standards
24 consistent with this chapter. Members of each watershed advisory group shall
25 be representative of the industries and interests affected by the management
26 of that watershed, along with representatives of local government and shall,
27 where appropriate, include a representative from each of the following: agri-
28 culture, mining, point source dischargers, forest products, local government,
29 livestock, Indian tribes (for areas within reservation boundaries), water-
30 based recreation, environmental interests and the land managing or regulatory
31 agencies with an interest in the management of that watershed and the quality
32 of the water bodies within it. Members of each watershed advisory group shall
33 serve and shall not be reimbursed for their expenses during their term of ser-
34 vice.
35 SECTION 4. That Section 39-3616, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 39-3616. DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
38 group shall generally be responsible for recommending those specific actions
39 needed to control point and nonpoint sources of pollution within the watershed
40 so that, within reasonable periods of time, designated beneficial uses are
41 fully supported and other state water quality plans are achieved. Watershed
42 advisory groups shall, as described in this chapter, consult with the director
43 and participate in the development of each TMDL and any supporting subbasin
44 assessment, for water bodies within the watershed, and shall develop and rec-
45 ommend actions needed to effectively control sources of pollution. In carrying
46 out the provisions of this section, the director and the watershed advisory
47 groups shall employ all means of public involvement deemed necessary or
48 required in chapter 52, title 67, Idaho Code, and shall cooperate fully with
49 the public involvement or planning processes of other appropriate public agen-
50 cies.
]]]
7
1 SECTION 5. An emergency existing therefor, which emergency is hereby
2 declared to exist, this act shall be in full force and effect on and after its
3 passage and approval, and shall apply to any subbasin assessment or total max-
4 imum daily load pending on the effective date of this act, or initiated subse-
5 quent hereto without regard to any other provision of law.".
6 CORRECTION TO TITLE
7 On page 1, delete lines 2 through 25, and insert:
8 "RELATING TO WATER QUALITY; AMENDING SECTION 39-3602, IDAHO CODE, TO PROVIDE A
9 DEFINITION OF "SUBBASIN ASSESSMENT"; AMENDING SECTION 39-3611, IDAHO CODE,
10 TO MAKE TECHNICAL CORRECTIONS, TO PROVIDE THAT EACH TOTAL MAXIMUM DAILY
11 LOAD AND ANY SUPPORTING SUBBASIN ASSESSMENT SHALL PROVIDE IDENTIFICATION
12 OF THE PERIOD OF TIME NECESSARY TO ACHIEVE FULL SUPPORT OF DESIGNATED BEN-
13 EFICIAL USES WHICH TAKES INTO ACCOUNT ANY EXPECTED CHANGES TO WATER QUAL-
14 ITY STANDARDS AND TO PROVIDE THAT TOTAL MAXIMUM DAILY LOADS SHALL BE
15 DEVELOPED IN CONSULTATION WITH THE WATERSHED ADVISORY GROUP FOR THE WATER-
16 SHED IN WHICH THE WATER BODIES ARE LOCATED; AMENDING SECTION 39-3615,
17 IDAHO CODE, TO PROVIDE THAT WATERSHED ADVISORY GROUPS WILL GENERALLY
18 ADVISE THE DEPARTMENT ON THE APPROPRIATENESS, ATTAINABILITY AND STATUS OF
19 EXISTING AND DESIGNATED BENEFICIAL USES WITHIN THE WATERSHED AND ON THE
20 DEVELOPMENT AND IMPLEMENTATION OF TMDLS, TO PROVIDE THAT THE DIRECTOR OF
21 THE DEPARTMENT OF ENVIRONMENTAL QUALITY WITH THE ADVICE OF THE APPROPRIATE
22 BASIN ADVISORY GROUP SHALL NAME WATERSHED ADVISORY GROUPS EARLY ENOUGH TO
23 ALLOW CONSULTATION TO OCCUR PRIOR TO PUBLIC COMMENT ON AND SUBMISSION OF A
24 TMDL AND ANY SUPPORTING SUBBASIN ASSESSMENT TO THE ENVIRONMENTAL PROTEC-
25 TION AGENCY FOR APPROVAL AND TO REVISE REPRESENTATIVES OF WATERSHED ADVI-
26 SORY GROUPS; AMENDING SECTION 39-3616, IDAHO CODE, TO PROVIDE THAT WATER-
27 SHED ADVISORY GROUPS SHALL CONSULT WITH THE DIRECTOR AND PARTICIPATE IN
28 THE DEVELOPMENT OF EACH TMDL AND ANY SUPPORTING SUBBASIN ASSESSMENT FOR
29 WATER BODIES WITHIN THE WATERSHED; DECLARING AN EMERGENCY AND PROVIDING
30 APPLICATION.".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 544, As Amended, As Amended in the Senate
BY ENVIRONMENTAL AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO WATER QUALITY; AMENDING SECTION 39-3602, IDAHO CODE, TO PROVIDE A
3 DEFINITION OF "SUBBASIN ASSESSMENT"; AMENDING SECTION 39-3611, IDAHO CODE,
4 TO MAKE TECHNICAL CORRECTIONS, TO PROVIDE THAT EACH TOTAL MAXIMUM DAILY
5 LOAD AND ANY SUPPORTING SUBBASIN ASSESSMENT SHALL PROVIDE IDENTIFICATION
6 OF THE PERIOD OF TIME NECESSARY TO ACHIEVE FULL SUPPORT OF DESIGNATED BEN-
7 EFICIAL USES WHICH TAKES INTO ACCOUNT ANY EXPECTED CHANGES TO WATER QUAL-
8 ITY STANDARDS AND TO PROVIDE THAT TOTAL MAXIMUM DAILY LOADS SHALL BE
9 DEVELOPED IN CONSULTATION WITH THE WATERSHED ADVISORY GROUP FOR THE WATER-
10 SHED IN WHICH THE WATER BODIES ARE LOCATED; AMENDING SECTION 39-3615,
11 IDAHO CODE, TO PROVIDE THAT WATERSHED ADVISORY GROUPS WILL GENERALLY
12 ADVISE THE DEPARTMENT ON THE APPROPRIATENESS, ATTAINABILITY AND STATUS OF
13 EXISTING AND DESIGNATED BENEFICIAL USES WITHIN THE WATERSHED AND ON THE
14 DEVELOPMENT AND IMPLEMENTATION OF TMDLS, TO PROVIDE THAT THE DIRECTOR OF
15 THE DEPARTMENT OF ENVIRONMENTAL QUALITY WITH THE ADVICE OF THE APPROPRIATE
16 BASIN ADVISORY GROUP SHALL NAME WATERSHED ADVISORY GROUPS EARLY ENOUGH TO
17 ALLOW CONSULTATION TO OCCUR PRIOR TO PUBLIC COMMENT ON AND SUBMISSION OF A
18 TMDL AND ANY SUPPORTING SUBBASIN ASSESSMENT TO THE ENVIRONMENTAL PROTEC-
19 TION AGENCY FOR APPROVAL AND TO REVISE REPRESENTATIVES OF WATERSHED ADVI-
20 SORY GROUPS; AMENDING SECTION 39-3616, IDAHO CODE, TO PROVIDE THAT WATER-
21 SHED ADVISORY GROUPS SHALL CONSULT WITH THE DIRECTOR AND PARTICIPATE IN
22 THE DEVELOPMENT OF EACH TMDL AND ANY SUPPORTING SUBBASIN ASSESSMENT FOR
23 WATER BODIES WITHIN THE WATERSHED; DECLARING AN EMERGENCY AND PROVIDING
24 APPLICATION.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That Section 39-3602, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 39-3602. DEFINITIONS. Whenever used or referred to in this chapter,
29 unless a different meaning clearly appears from the context, the following
30 terms shall have the following meanings:
31 (1) "Applicable water quality standard" means those water quality stan-
32 dards identified in the rules of the department.
33 (2) "Best management practice" means practices, techniques or measures
34 developed, or identified, by the designated agency and identified in the state
35 water quality management plan which are determined to be a cost-effective and
36 practicable means of preventing or reducing pollutants generated from nonpoint
37 sources to a level compatible with water quality goals.
38 (3) "Board" means the board of environmental quality.
39 (4) "Department" means the department of environmental quality.
40 (5) "Designated agency" means the department of lands for timber harvest
41 activities, for oil and gas exploration and development and for mining activi-
42 ties; the soil conservation commission for grazing activities and for agricul-
43 tural activities; the transportation department for public road construction;
2
1 the department of agriculture for aquaculture; and the department of environ-
2 mental quality for all other activities.
3 (6) "Designated use or designated beneficial use" means those uses
4 assigned to waters as identified in the rules of the department whether or not
5 the uses are being attained. The department may adopt subcategories of a use.
6 (7) "Director" means the director of the department of environmental
7 quality, or his or her designee.
8 (8) "Discharge" means any spilling, leaking, emitting, escaping, leach-
9 ing, or disposing of a pollutant into the waters of the state. For the pur-
10 poses of this chapter, discharge shall not include surface water runoff from
11 nonpoint sources or natural soil disturbing events.
12 (9) "Existing use" means those surface water uses actually attained on or
13 after November 28, 1975, whether or not they are designated uses. Existing
14 uses may form the basis for subcategories of designated uses.
15 (10) "Full protection, full support, or full maintenance of designated
16 beneficial uses of water" means compliance with those levels of water quality
17 criteria listed in the appropriate rules of the department, or where there is
18 no applicable numerical criteria, compliance with the reference streams or
19 conditions approved by the director in consultation with the appropriate basin
20 advisory group.
21 (11) "Lower water quality" means a measurable adverse change in a chemi-
22 cal, physical, or biological parameter of water relevant to a designated bene-
23 ficial use, and which can be expressed numerically. Measurable adverse change
24 is determined by a statistically significant difference between sample means
25 using standard methods for analysis and statistical interpretation appropri-
26 ate to the parameter. Statistical significance is defined as the ninety-five
27 percent (95%) confidence limit when significance is not otherwise defined for
28 the parameter in standard methods or practices.
29 (12) "National pollutant discharge elimination system (NPDES)" means the
30 point source permitting program established pursuant to section 402 of the
31 federal clean water act.
32 (13) "New nonpoint source activity" means a new nonpoint source activity
33 or a substantially modified existing nonpoint source activity on or adversely
34 affecting an outstanding resource water which includes, but is not limited to,
35 new silvicultural activities, new mining activities and substantial modifica-
36 tions to an existing mining permit or approved plan, new recreational activi-
37 ties and substantial modifications to existing recreational activities, new
38 residential or commercial development that includes soil disturbing activi-
39 ties, new grazing activities and substantial modifications to existing grazing
40 activities, except that reissuance of existing grazing permits, or grazing
41 activities and practices authorized under an existing permit, is not consid-
42 ered a new activity. It does not include naturally occurring events such as
43 floods, landslides, and wildfire including prescribed natural fire.
44 (14) "Nonpoint source activities" includes grazing, crop production, sil-
45 viculture, log storage or rafting, construction, mining, recreation, septic
46 systems, runoff from storms and other weather related events and other activi-
47 ties not subject to regulation under the federal national pollutant discharge
48 elimination system. Nonpoint source activities on waters designated as out-
49 standing resource waters do not include issuance of water rights permits or
50 licenses, allocation of water rights, operation of diversions, or impound-
51 ments.
52 (15) "Nonpoint source runoff" means water which may carry pollutants from
53 nonpoint source activities into the waters of the state.
54 (16) "Outstanding resource water" means a high quality water, such as
55 water of national and state parks and wildlife refuges and water of excep-
3
1 tional recreational or ecological significance, which has been so designated
2 by the legislature. It constitutes an outstanding national or state resource
3 that requires protection from point source and nonpoint source activities that
4 may lower water quality.
5 (17) "Person" means any individual, association, partnership, firm, joint
6 stock company, joint venture, trust, estate, political subdivision, public or
7 private corporation, state or federal governmental department, agency or
8 instrumentality, or any legal entity, which is recognized by law as the sub-
9 ject of rights and duties.
10 (18) "Point source" means any discernible, confined, and discrete convey-
11 ance including, but not limited to, any pipe, ditch, channel, tunnel, conduit,
12 well, discrete fissure, container, rolling stock, concentrated animal feeding
13 operation, or vessel or other floating craft, from which pollutants are, or
14 may be, discharged. This term does not include return flows from irrigated
15 agriculture, discharges from dams and hydroelectric generating facilities or
16 any source or activity considered a nonpoint source by definition.
17 (19) "Pollutant" means dredged spoil, solid waste, incinerator residue,
18 sewage, garbage, sewage sludge, munitions, chemical waste, biological mate-
19 rials, radioactive materials, heat, wrecked or discarded equipment, rock,
20 sand, silt, cellar dirt; and industrial, municipal and agricultural waste,
21 gases entrained in water; or other materials which, when discharged or
22 released to water in excessive quantities cause or contribute to water pollu-
23 tion. Provided however, biological materials shall not include live or occa-
24 sional dead fish that may accidentally escape into the waters of the state
25 from aquaculture facilities.
26 (20) "Reference stream or condition" means one (1) of the following:
27 (a) The minimum biological, physical and chemical conditions necessary to
28 fully support the designated beneficial uses; or
29 (b) A water body representing natural conditions with few impacts from
30 human activities and which are representative of the highest level of sup-
31 port attainable in the basin; or
32 (c) A water body representing minimum conditions necessary to fully sup-
33 port the designated beneficial uses.
34 In highly mineralized areas or in the absence of such reference streams or
35 water bodies, the director, in consultation with the basin advisory group and
36 the technical advisers to it, may define appropriate hypothetical reference
37 conditions or may use monitoring data specific to the site in question to
38 determine conditions in which the beneficial uses are fully supported.
39 (21) "Short-term or temporary activity" means an activity which is limited
40 in scope and is expected to have only minimal impact on water quality as
41 determined by the director. Short-term or temporary activities include, but
42 are not limited to, maintenance of existing structures, limited road and trail
43 reconstruction, soil stabilization measures, and habitat enhancement struc-
44 tures.
45 (22) "Silviculture" means those activities associated with the
46 regeneration, growing and harvesting of trees and timber including, but not
47 limited to, disposal of logging slash, preparing sites for new stands of trees
48 to be either planted or allowed to regenerate through natural means, road con-
49 struction and road maintenance, drainage of surface water which inhibits tree
50 growth or logging operations, fertilization, application of herbicides or pes-
51 ticides, all logging operations, and all forest management techniques employed
52 to enhance the growth of stands of trees or timber.
53 (23) "Soil conservation commission" means an agency of state government as
54 created in section 22-2718, Idaho Code.
55 (24) "Soil conservation district" means an entity of state government as
4
1 defined in section 22-2717, Idaho Code.
2 (25) "State" means the state of Idaho.
3 (26) "State water quality management plan" means the state management plan
4 developed and updated by the department in accordance with sections 205, 208,
5 and 303 of the federal clean water act.
6 (27) "Subbasin assessment" means a document that describes the watershed
7 or watersheds for which a total maximum daily load is proposed, the water
8 quality concerns and status of beneficial uses of individual water bodies, the
9 nature and location of pollutant sources, past and ongoing pollutant control
10 activities, and such other information that the director and the local water-
11 shed advisory group determine is pertinent to the analysis of water quality
12 and the development and implementation of a total maximum daily load.
13 (28) "Total maximum daily load (TMDL)" means a plan for a water body not
14 fully supporting designated beneficial uses and includes the sum of the indi-
15 vidual wasteload allocations for point sources, load allocations for nonpoint
16 sources, and natural background levels of the pollutant impacting the water
17 body. Pollutant allocations established through TMDLs shall be at a level nec-
18 essary to implement the applicable water quality standards for the identified
19 pollutants with seasonal variations and a margin of safety to account for
20 uncertainty concerning the relationship between the pollutant loading and
21 water quality standards.
22 (289) "Waters or water body" means all the accumulations of surface water,
23 natural and artificial, public and private, or parts thereof which are wholly
24 or partially within, flow through or border upon this state. For the purposes
25 of this chapter, water bodies shall not include municipal or industrial waste-
26 water treatment or storage structures or private reservoirs, the operation of
27 which has no effect on waters of the state.
28 (2930) "Water pollution" is such alteration of the thermal, chemical, bio-
29 logical or radioactive properties of any waters of the state, or such dis-
30 charge or release of any contaminant into the waters of the state as will or
31 is likely to create a nuisance or render such waters harmful or detrimental or
32 injurious to public health, safety or welfare or to domestic, commercial,
33 industrial, recreational, aesthetic or other legitimate uses or to livestock,
34 wild animals, birds, fish or other aquatic life.
35 (301) "Watersheds" means the land area from which water flows into a
36 stream or other body of water which drains the area. For the purposes of this
37 chapter, the area of watersheds shall be recommended by the basin advisory
38 group described in section 39-3613, Idaho Code.
39 SECTION 2. That Section 39-3611, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
42 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
43 Code, the director shall, in accordance with the priorities set forth in sec-
44 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and through
45 39-3616, Idaho Code, and as required by the federal clean water act, develop a
46 total maximum daily load to control point source and nonpoint sources of pol-
47 lution on pollutants to the water body.
48 (2) Upon the completion of a total maximum daily load, the director shall
49 publish notice of the final decision on the TMDL in the Idaho administrative
50 bulletin and provide written notice to members of the applicable watershed
51 advisory group. The director's final decision shall be based upon a record
52 that provides the basis for the total maximum daily load. The rulemaking pro-
53 visions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
5
1 TMDLs. The director's final decision regarding a TMDL may be appealed to the
2 board of environmental quality in accordance with section 39-107(5), Idaho
3 Code, and the rules governing such appeals. The time for appeal to the board
4 shall commence upon publication in the administrative bulletin. The board's
5 final decision is subject to judicial review under section 39-107(6), Idaho
6 Code. The provisions of this subsection shall apply to all total maximum daily
7 loads developed by the director after January 1, 1995. Provided however, that
8 the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
9 shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
10 from the head of the Spokane River. Provided further, that nothing herein
11 shall modify the requirement that water quality standards be promulgated as
12 rules of the department pursuant to title 67, chapter 52, Idaho Code.
13 (3) For water bodies where an applicable water quality standard has not
14 been attained due to impacts that occurred prior to 1972, no further restric-
15 tions under a total maximum daily load process shall be placed on a point
16 source discharge unless the point source contribution of a pollutant exceeds
17 twenty-five percent (25%) of the total load for that pollutant. Existing uses
18 shall be maintained on all such water bodies.
19 (4) Total maximum daily load processes developed pursuant to this section
20 shall include, but not be limited to:
21 (a) Identification of pollutant(s) impacting the water body;
22 (b) An inventory of all point and nonpoint sources of the identified pol-
23 lutant, if practical, or an analysis of the land types, land uses and geo-
24 graphical features within the watershed that may be contributing identi-
25 fied pollutants to the water body;
26 (c) An analysis of why current control strategies are not effective in
27 assuring full support of designated beneficial uses;
28 (d) A plan to monitor and evaluate progress toward water quality progress
29 and to ascertain when designated beneficial uses will be fully supported;
30 (e) Pollution control strategies for both point sources and nonpoint
31 sources for reducing those sources of pollution;
32 (f) Identification of the period of time necessary to achieve full sup-
33 port of designated beneficial uses which takes into account any expected
34 changes to applicable water quality standards; and
35 (g) An adequate margin of safety to account for uncertainty.
36 (5) Point source discharges for which a national pollutant discharge
37 elimination system permit is approved after January 1, 1995, shall be deemed
38 to have met the requirements of this section.
39 (6) Each TMDL and any supporting subbasin assessment shall be developed
40 in consultation with the watershed advisory group for the watershed in which
41 the water bodies are located. Consultation shall include, but shall not be
42 limited to: (a) providing the watershed advisory group with all available
43 information concerning applicable water quality standards, water quality data,
44 monitoring, assessments, reports, procedures and schedules for developing and
45 submitting the TMDL and any supporting subbasin assessment to the environmen-
46 tal protection agency; (b) utilizing the knowledge, expertise, experience and
47 information of the watershed advisory group in assessing the status,
48 attainability or appropriateness of water quality standards, and in developing
49 a TMDL and any supporting subbasin assessment; and (c) providing the watershed
50 advisory group with the opportunity to participate in drafting the documents
51 for the TMDL and any supporting subbasin assessment. No TMDL shall be pub-
52 lished for public comment or submitted for approval by the environmental pro-
53 tection agency until consultation, as herein defined, has occurred. If after
54 consultation, the watershed advisory group disagrees with the TMDL or any sup-
55 porting subbasin assessment, or has determined that applicable water quality
6
1 standards should be reevaluated or revised, such position and the basis there-
2 for shall be documented in the public notice of availability to the TMDL and
3 any supporting subbasin assessment for review and in any submission of the
4 same to the environmental protection agency. The director shall respond to the
5 points raised by the watershed advisory group, and document the response in
6 the final decision.
7 SECTION 3. That Section 39-3615, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 39-3615. CREATION OF WATERSHED ADVISORY GROUPS. The director, with the
10 advice of the appropriate basin advisory group, may shall name watershed advi-
11 sory groups which will generally advise the department on the appropriateness,
12 attainability and status of existing and designated beneficial uses within the
13 watershed, and on the development and implementation of TMDLs and other state
14 water quality plans, including those specific actions needed to control point
15 and nonpoint sources of pollution within the watersheds of those water bodies
16 where designated beneficial uses are not fully supported. Each watershed advi-
17 sory group shall be formed early enough to complete consultation, as defined
18 in subsection (6) of section 39-3611, Idaho Code, prior to the date the TMDL
19 and any supporting subbasin assessment is scheduled to be submitted to the
20 environmental protection agency for approval. If the members of the watershed
21 advisory group, with the concurrence of the basin advisory group, advise the
22 director that applicable water quality standards within the watershed are not
23 attainable or are inappropriate based upon supporting data, the director shall
24 initiate the process to assess such standards, and to change the standards
25 consistent with this chapter. Members of each watershed advisory group shall
26 be representative of the industries and interests affected by the management
27 of that watershed, along with representatives of local government and shall,
28 where appropriate, include a representative from each of the following: agri-
29 culture, mining, point source dischargers, forest products, local government,
30 livestock, Indian tribes (for areas within reservation boundaries), water-
31 based recreation, environmental interests and the land managing or regulatory
32 agencies with an interest in the management of that watershed and the quality
33 of the water bodies within it. Members of each watershed advisory group shall
34 serve and shall not be reimbursed for their expenses during their term of ser-
35 vice.
36 SECTION 4. That Section 39-3616, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 39-3616. DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
39 group shall generally be responsible for recommending those specific actions
40 needed to control point and nonpoint sources of pollution within the watershed
41 so that, within reasonable periods of time, designated beneficial uses are
42 fully supported and other state water quality plans are achieved. Watershed
43 advisory groups shall, as described in this chapter, consult with the director
44 and participate in the development of each TMDL and any supporting subbasin
45 assessment, for water bodies within the watershed, and shall develop and rec-
46 ommend actions needed to effectively control sources of pollution. In carrying
47 out the provisions of this section, the director and the watershed advisory
48 groups shall employ all means of public involvement deemed necessary or
49 required in chapter 52, title 67, Idaho Code, and shall cooperate fully with
50 the public involvement or planning processes of other appropriate public agen-
51 cies.
7
1 SECTION 5. An emergency existing therefor, which emergency is hereby
2 declared to exist, this act shall be in full force and effect on and after its
3 passage and approval, and shall apply to any subbasin assessment or total max-
4 imum daily load pending on the effective date of this act, or initiated subse-
5 quent hereto without regard to any other provision of law.
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 544, As Amended
BY ENVIRONMENTAL AFFAIRS COMMITTEE
6 AN ACT
7 RELATING TO WATER QUALITY; AMENDING SECTION 39-3607, IDAHO CODE, TO PROVIDE
8 THAT THE SURVEYS OR ASSESSMENTS SHALL BE PREPARED IN CONSULTATION WITH THE
9 WATERSHED ADVISORY GROUP FOR THE WATERSHED AND TO PROVIDE THAT SURVEYS OR
10 ASSESSMENTS SHALL NOT BE DISSEMINATED FOR PUBLIC COMMENT AND SHALL NOT BE
11 SUBMITTED TO GOVERNMENT AGENCIES WITHOUT THE APPROVAL OF AT LEAST FIFTY
12 PERCENT OF THE MEMBERS OF THE WATERSHED ADVISORY GROUP; AMENDING SECTION
13 39-3609, IDAHO CODE, TO PROVIDE THAT NO NOTIFICATION SHALL BE PROVIDED
14 WITHOUT THE APPROVAL OF AT LEAST FIFTY PERCENT OF THE WATERSHED ADVISORY
15 GROUP; AMENDING SECTION 39-3611, IDAHO CODE, TO PROVIDE THAT EACH TOTAL
16 MAXIMUM DAILY LOAD SHALL BE DEVELOPED IN CONSULTATION WITH THE WATERSHED
17 ADVISORY GROUP FOR THE WATERSHED IN WHICH THE WATER BODIES ARE LOCATED AND
18 TO PROVIDE THAT TOTAL MAXIMUM DAILY LOADS SHALL NOT BE DISSEMINATED FOR
19 PUBLIC COMMENT AND SHALL NOT BE SUBMITTED TO GOVERNMENT AGENCIES WITHOUT
20 THE APPROVAL OF AT LEAST FIFTY PERCENT OF THE MEMBERS OF THE WATERSHED
21 ADVISORY GROUP; AMENDING SECTION 39-3615, IDAHO CODE, TO PROVIDE THAT THE
22 DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY WITH THE ADVICE OF THE
23 APPROPRIATE BASIN ADVISORY GROUP SHALL NAME WATERSHED ADVISORY GROUPS
24 WHICH WILL GENERALLY ADVISE THE DEPARTMENT ON THE APPROPRIATENESS,
25 ATTAINABILITY AND STATUS OF EXISTING AND DESIGNATED BENEFICIAL USES WITHIN
26 THE WATERSHED AND ON THE DEVELOPMENT AND IMPLEMENTATION OF TMDLS; AMENDING
27 SECTION 39-3616, IDAHO CODE, TO PROVIDE THAT WATERSHED ADVISORY GROUPS
28 SHALL CONSULT WITH THE DIRECTOR AND PARTICIPATE IN THE DEVELOPMENT OF EACH
29 SURVEY OR ASSESSMENT OF BENEFICIAL USE ATTAINABILITY OR STATUS, AND EACH
30 TMDL, FOR WATER BODIES WITHIN THE WATERSHED; AND DECLARING AN EMERGENCY.
31 Be It Enacted by the Legislature of the State of Idaho:
32 SECTION 6. That Section 39-3607, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 39-3607. MONITORING TO DETERMINE SUPPORT OF BENEFICIAL USES. The director
35 shall conduct a beneficial use attainability and status survey to identify
36 appropriate designated uses and to determine the status of designated benefi-
37 cial uses in each water body. Measures to determine appropriate designated
38 uses and the status of designated beneficial uses shall include appropriate
39 water quality standards as identified in the rules of the department in con-
40 junction with biological or aquatic habitat measures that may include, but are
41 not limited to: stream width, stream depth, stream shade, sediment, bank sta-
42 bility, water flows, physical characteristics of the stream that affect habi-
43 tat for fish, macroinvertebrate species or other aquatic life, and the variety
44 and number of fish or other aquatic life.
45 Previous assessments of beneficial use attainability and status which are
46 of a quality and content acceptable to the director shall constitute the
8
1 baseline data against which future assessments shall be made to determine
2 changes in the water body and what beneficial uses can be attained in it. In
3 addition, the director, to the extent possible, may determine whether changes
4 in the condition of the water body are the result of past or ongoing point or
5 nonpoint source activities. Each survey or assessment of beneficial use
6 attainability or status shall be prepared in consultation with the watershed
7 advisory group for the watershed in which the water body is located. No sur-
8 vey or assessment shall be disseminated for public comment, submitted to the
9 environmental protection agency or other public agency or used by the director
10 in exercising the authorities conferred by this chapter, without the approval
11 of at least fifty percent (50%) of the members of the watershed advisory
12 group. The director shall also seek information from appropriate public agen-
13 cies regarding land uses and geological or other information for the watershed
14 which may affect water quality and the ability of the water body in question
15 to fully support or attain designated beneficial uses. In carrying out the
16 provisions of this section, the director may contract with private enterprises
17 or public agencies to provide the desired data.
18 SECTION 7. That Section 39-3609, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 39-3609. IDENTIFICATION OF WATER BODIES WHERE BENEFICIAL USES ARE NOT
21 FULLY SUPPORTED. In accordance with the provisions set forth in the federal
22 clean water act and the public participation provisions set forth in this
23 chapter, the director shall notify the appropriate public agencies of any
24 water bodies in which the designated beneficial uses are not fully supported.
25 No such notification shall be provided without the approval of at least fifty
26 percent (50%) of the watershed advisory group for the watershed in which the
27 water body is located and public involvement as provided in section 39-3616,
28 Idaho Code. For water bodies so identified, the director shall place such
29 water bodies into one (1) of the following priority classifications for the
30 development of total maximum daily load or equivalent processes:
31 (1) "High," wherein definitive and generally accepted water quality data
32 indicate that unless remedial actions are taken in the near term there will be
33 significant risk to designated or existing beneficial uses of a particular
34 water body. The director in establishing this category, shall consider public
35 involvement as set forth in this chapter.
36 (2) "Medium," wherein water quality data indicate that unless remedial
37 actions are taken there will be risks to designated or existing beneficial
38 uses.
39 (3) "Low," wherein limited or subjective water quality data indicate des-
40 ignated uses are not fully supported, but that risks to human health, aquatic
41 life, or the recreational, economic or aesthetic importance of a particular
42 water body are minimal.
43 SECTION 8. That Section 39-3611, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 39-3611. DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
46 EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
47 Code, the director shall, in accordance with the priorities set forth in sec-
48 tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and 39-3616,
49 Idaho Code, and as required by the federal clean water act, develop a total
50 maximum daily load to control point source and nonpoint sources of pollution
51 on the water body.
9
1 (2) Upon the completion of a total maximum daily load, the director shall
2 publish notice of the final decision on the TMDL in the Idaho administrative
3 bulletin and provide written notice to members of the applicable watershed
4 advisory group. The director's final decision shall be based upon a record
5 that provides the basis for the total maximum daily load. The rulemaking pro-
6 visions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
7 TMDLs. The director's final decision regarding a TMDL may be appealed to the
8 board of environmental quality in accordance with section 39-107(5), Idaho
9 Code, and the rules governing such appeals. The time for appeal to the board
10 shall commence upon publication in the administrative bulletin. The board's
11 final decision is subject to judicial review under section 39-107(6), Idaho
12 Code. The provisions of this subsection shall apply to all total maximum daily
13 loads developed by the director after January 1, 1995. Provided however, that
14 the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
15 shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
16 from the head of the Spokane River. Provided further, that nothing herein
17 shall modify the requirement that water quality standards be promulgated as
18 rules of the department pursuant to title 67, chapter 52, Idaho Code.
19 (3) For water bodies where an applicable water quality standard has not
20 been attained due to impacts that occurred prior to 1972, no further restric-
21 tions under a total maximum daily load process shall be placed on a point
22 source discharge unless the point source contribution of a pollutant exceeds
23 twenty-five percent (25%) of the total load for that pollutant. Existing uses
24 shall be maintained on all such water bodies.
25 (4) Total maximum daily load processes developed pursuant to this section
26 shall include, but not be limited to:
27 (a) Identification of pollutant(s) impacting the water body;
28 (b) An inventory of all point and nonpoint sources of the identified pol-
29 lutant, if practical, or an analysis of the land types, land uses and geo-
30 graphical features within the watershed that may be contributing identi-
31 fied pollutants to the water body;
32 (c) An analysis of why current control strategies are not effective in
33 assuring full support of designated beneficial uses;
34 (d) A plan to monitor and evaluate progress toward water quality progress
35 and to ascertain when designated beneficial uses will be fully supported;
36 (e) Pollution control strategies for both point sources and nonpoint
37 sources for reducing those sources of pollution;
38 (f) Identification of the period of time necessary to achieve full sup-
39 port of designated beneficial uses; and
40 (g) An adequate margin of safety to account for uncertainty.
41 (5) Point source discharges for which a national pollutant discharge
42 elimination system permit is approved after January 1, 1995, shall be deemed
43 to have met the requirements of this section. Each total maximum daily load
44 shall be developed in consultation with the watershed advisory group for the
45 watershed in which the water bodies are located. No total maximum daily load
46 shall be disseminated for public comment, submitted to the environmental pro-
47 tection agency or any other public agency, or used by the director in exercis-
48 ing the authorities conferred by this chapter, without the approval of at
49 least fifty percent (50%) of the members of the watershed advisory group.
50 SECTION 9. That Section 39-3615, Idaho Code, be, and the same is hereby
51 amended to read as follows:
52 39-3615. CREATION OF WATERSHED ADVISORY GROUPS. The director, with the
53 advice of the appropriate basin advisory group, may shall name watershed advi-
10
1 sory groups which will generally advise the department on the appropriateness,
2 attainability and status of existing and designated beneficial uses within
3 the watershed and on the development and implementation of TMDLs and other
4 state water quality plans, including those specific actions needed to control
5 point and nonpoint sources of pollution within the watersheds of those water
6 bodies where designated beneficial uses are not fully supported. Members of
7 each watershed advisory group shall be representative of the industries and
8 interests affected by the management of that watershed, along with representa-
9 tives of local government and the land managing or regulatory agencies with an
10 interest in the management of that watershed and the quality of the water bod-
11 ies within it. Members of each watershed advisory group shall serve and shall
12 not be reimbursed for their expenses during their term of service.
13 SECTION 10. That Section 39-3616, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 39-3616. DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
16 group shall generally be responsible for recommending those specific actions
17 needed to control point and nonpoint sources of pollution within the watershed
18 so that, within reasonable periods of time, designated beneficial uses are
19 fully supported and other state water quality plans are achieved. Watershed
20 advisory groups shall, as described in this chapter, consult with the director
21 and participate in the development of each survey or assessment of beneficial
22 use attainability or status, and each TMDL, for water bodies within the water-
23 shed and shall develop and recommend actions needed to effectively control
24 sources of pollution. In carrying out the provisions of this section, the
25 director and the watershed advisory groups shall employ all means of public
26 involvement deemed necessary or required in chapter 52, title 67, Idaho Code,
27 and shall cooperate fully with the public involvement or planning processes of
28 other appropriate public agencies.
29 SECTION 11. An emergency existing therefor, which emergency is hereby
30 declared to exist, this act shall be in full force and effect on and after its
31 passage and approval.
AMENDED STATEMENT OF PURPOSE
RS 13715E1A1
This legislation requires the Director of the Department of Environmental
Quality (DEQ) to appoint watershed advisory groups (WAGs), and to consult
with WAGs to provide them with a full opportunity to participate in the
development of TMDLs and any supporting subbasin assessment for their
watersheds. Consultation is defined to include providing WAGs all available
pertinent information and data, and providing the WAGs with the opportunity to
participate in drafting the TMDL and any supporting subbasin assessment. This
definition of consultation reflects the common experience of most, if not all,
successfully completed subbasin assessments and TMDLs. This legislation also
provides, upon advice of the WAG and Basin Advisory Group, that when an
applicable water quality standard is unattainable or inappropriate, DEQ shall
initiate the process to change the standard. This legislation also clarifies
that WAG membership shall include, where appropriate, representatives of the
same categories of interest groups from which Basin Advisory Group members are
to be appointed.
FISCAL IMPACT
Potential costs incurred by DEQ in changing unattainable or inappropriate
water quality standards will be offset by savings to DEQ and the public
in not having to develop, implement, monitor, administer and enforce
unnecessary TMDLs. There are no other fiscal impacts.
Contact
Name: Senator Pearce, Representative Denney, Representative Edmunson
Phone: (208) 332-1000
REVISED REVISED REVISED
AMENDED STATEMENT OF PURPOSE/FISCAL NOTE Bill No. 544,a.a,a.a.S.