2005 Legislation
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HOUSE BILL NO. 145 – Watershed advisory groups, duties

HOUSE BILL NO. 145

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H0145aa,aaS...........................by ENVIRONMENT, ENERGY AND TECHNOLOGY
WATERSHED ADVISORY GROUPS - Amends existing law relating to water quality
to define terms and revise a definition; to revise provisions applicable to
the development and implementation of total maximum daily load or
equivalent processes; to revise provisions applicable to Watershed Advisory
Groups; and to revise the duties of Watershed Advisory Groups.
                                                                        
02/09    House intro - 1st rdg - to printing
02/10    Rpt prt - to Env
02/15    Rpt out - to Gen Ord
02/16    Rpt out amen - to engros
02/17    Rpt engros - 1st rdg - to 2nd rdg as amen
02/18    2nd rdg - to 3rd rdg as amen
02/23    3rd rdg as amen - PASSED - 56-14-0
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Bolz, Bradford, Cannon,
      Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henderson,
      Jones, Kemp, Lake, Loertscher, Mathews, McGeachin, McKague, Miller,
      Moyle, Nielsen, Nonini, Raybould, Ring, Roberts, Rydalch, Sali,
      Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smylie,
      Snodgrass, Stevenson, Wills, Wood, Mr. Speaker
      NAYS -- Boe, Henbest, Jaquet, LeFavour, Martinez, Mitchell,
      Pasley-Stuart, Pence, Ringo, Rusche, Sayler, Smith(30), Smith(24),
      Trail
      Absent and excused -- None
    Floor Sponsor - Denney
    Title apvd - to Senate
02/24    Senate intro - 1st rdg - to Res/Env
03/21    Rpt out - to 14th Ord
03/23    Rpt out amen - to 1st rdg as amen
03/24    1st rdg - to 2nd rdg as amen
03/25    2nd rdg - to 3rd rdg as amen
03/29    3rd rdg as amen - PASSED - 28-4-3
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Cameron, Coiner, Compton, Corder, Davis, Fulcher, Gannon,
      Geddes, Goedde, Hill, Jorgenson, Keough, Little, Lodge, Malepeai,
      McKenzie, Pearce, Richardson, Schroeder, Stegner, Sweet, Williams
      NAYS -- Kelly, Marley, Stennett, Werk
      Absent and excused -- Darrington, Langhorst, McGee
    Floor Sponsor - Pearce
    Title apvd - to House
03/30    House concurred in Senate amens - to engros
03/31    Rpt engros - 1st rdg - to 2nd rdg as amen
04/01    2nd rdg - to 3rd rdg as amen
04/04    3rd rdg as amen - PASSED - 57-10-3
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Bolz, Bradford, Cannon,
      Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson,
      Ellsworth(Ellsworth), Eskridge, Field(18), Field(23), Garrett, Hart,
      Harwood, Henderson, Jones, Kemp, Lake, Loertscher, Martinez, Mathews,
      McGeachin, McKague, Miller, Moyle, Nielsen, Nonini, Pence, Raybould,
      Ring, Rydalch, Sali, Sayler(Callen), Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Skippen, Smylie, Snodgrass, Stevenson, Wills,
      Mr. Speaker
      NAYS -- Boe, Henbest, Jaquet, LeFavour, Mitchell, Pasley-Stuart,
      Ringo, Rusche, Smith(30), Smith(24)
      Absent and excused -- Roberts, Trail, Wood
    Floor Sponsor - Denney
    Title apvd - To enrol - Rpt enrol - Sp signed
04/05    Pres signed - To Governor
04/11    Governor signed
         Session Law Chapter 334
         Effective: 04/11/05 Applicable to all pending
         and subsequent subbasin or total maximum daily
         load document filings

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 145
                                                                        
                      BY ENVIRONMENT, ENERGY AND TECHNOLOGY COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO WATER QUALITY; AMENDING SECTION 39-3602,  IDAHO  CODE,  TO  DEFINE
  3        TERMS, TO REVISE A DEFINITION AND TO MAKE TECHNICAL CHANGES; AMENDING SEC-
  4        TION  39-3611, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO THE DEVELOP-
  5        MENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR EQUIVALENT PROCESS-
  6        ES; AMENDING SECTION 39-3615, IDAHO CODE, TO REVISE PROVISIONS  APPLICABLE
  7        TO  WATERSHED ADVISORY GROUPS AND TO MAKE TECHNICAL CHANGES; AMENDING SEC-
  8        TION 39-3616, IDAHO CODE, TO  REVISE  THE  DUTIES  OF  WATERSHED  ADVISORY
  9        GROUPS; DECLARING AN EMERGENCY AND PROVIDING FOR APPLICATION.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 39-3602, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        39-3602.  DEFINITIONS. Whenever used  or  referred  to  in  this  chapter,
 14    unless  a  different  meaning  clearly appears from the context, the following
 15    terms shall have the following meanings:
 16        (1)  "Applicable water quality standard" means those water  quality  stan-
 17    dards identified in the rules of the department.
 18        (2)  "Attainable"  water quality, water quality standards, uses and crite-
 19    ria means water quality, water quality standards, uses and criteria  that  can
 20    be  achieved through implementation of feasible control strategies on a broad,
 21    watershed basis.
 22        (3)  "Best management practice" means practices,  techniques  or  measures
 23    developed, or identified, by the designated agency and identified in the state
 24    water  quality management plan which are determined to be a cost-effective and
 25    practicable means of preventing or reducing pollutants generated from nonpoint
 26    sources to a level compatible with water quality goals.
 27        (34)  "Board" means the board of environmental quality.
 28        (5)  "Control strategies" and "feasible control strategies"  mean  actions
 29    to control the discharge of pollutants that can reasonably be taken to improve
 30    the  water  quality  within the physical, operational, economic and other con-
 31    straints that affect individual enterprises and communities.  Control  strate-
 32    gies  that  will  injure  existing  or future social and economic activity and
 33    growth are neither reasonable nor feasible.
 34        (46)  "Department" means the department of environmental quality.
 35        (57)  "Designated agency" means the department of lands for timber harvest
 36    activities, for oil and gas exploration and development and for mining activi-
 37    ties; the soil conservation commission for grazing activities and for agricul-
 38    tural activities; the transportation department for public road  construction;
 39    the  department of agriculture for aquaculture; and the department of environ-
 40    mental quality for all other activities.
 41        (68)  "Designated use or  designated  beneficial  use"  means  those  uses
 42    assigned to waters as identified in the rules of the department whether or not
 43    the uses are being attained. The department may adopt subcategories of a use.
                                                                        
                                           2
                                                                        
  1        (79)  "Director"  means  the  director  of the department of environmental
  2    quality, or his or her designee.
  3        (810) "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        (911)  "Existing  use" means those surface water uses actually attained on
  8    or after November 28, 1975, whether or not they are designated uses.  Existing
  9    uses may form the basis for subcategories of designated uses.
 10        (102) "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        (113) "Lower water quality" means a measurable adverse change in a  chemi-
 17    cal, physical, or biological parameter of water relevant to a designated bene-
 18    ficial use, and which can be expressed numerically.  Measurable adverse change
 19    is  determined  by a statistically significant difference between sample means
 20    using standard methods for analysis and statistical interpretation appropriate
 21    to the parameter. Statistical significance is defined as the ninety-five  per-
 22    cent (95%) confidence limit when significance is not otherwise defined for the
 23    parameter in standard methods or practices.
 24        (124) "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        (135) "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        (146) "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        (157) "Nonpoint source runoff" means water which may carry pollutants from
 48    nonpoint source activities into the waters of the state.
 49        (168) "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.
 55        (179) "Person" means any individual, association, partnership, firm, joint
                                                                        
                                           3
                                                                        
  1    stock  company, joint venture, trust, estate, political subdivision, public or
  2    private corporation, state  or  federal  governmental  department,  agency  or
  3    instrumentality,  or  any legal entity, which is recognized by law as the sub-
  4    ject of rights and duties.
  5        (1820) "Point source" means any discernible, confined, and  discrete  con-
  6    veyance  including, but not limited to, any pipe, ditch, channel, tunnel, con-
  7    duit, well, discrete fissure, container, rolling  stock,  concentrated  animal
  8    feeding  operation,  or  vessel or other floating craft, from which pollutants
  9    are, or may be, discharged. This term does not include return flows from irri-
 10    gated agriculture, discharges from dams and hydroelectric  generating  facili-
 11    ties or any source or activity considered a nonpoint source by definition.
 12        (1921) "Pollutant"  means dredged spoil, solid waste, incinerator residue,
 13    sewage, garbage, sewage sludge, munitions, chemical  waste,  biological  mate-
 14    rials,  radioactive  materials,  heat,  wrecked  or discarded equipment, rock,
 15    sand, silt, cellar dirt; and industrial,  municipal  and  agricultural  waste,
 16    gases  entrained  in  water;  or  other  materials  which,  when discharged or
 17    released to water in excessive quantities cause or contribute to water  pollu-
 18    tion.  Provided  however, biological materials shall not include live or occa-
 19    sional dead fish that may accidentally escape into the  waters  of  the  state
 20    from aquaculture facilities.
 21        (202) "Reference stream or condition" means one (1) of the following:
 22        (a)  The minimum biological, physical and chemical conditions necessary to
 23        fully support the designated beneficial uses; or
 24        (b)  A  water  body  representing natural conditions with few impacts from
 25        human activities and which are representative of the highest level of sup-
 26        port attainable in the basin; or
 27        (c)  A water body representing minimum conditions necessary to fully  sup-
 28        port the designated beneficial uses.
 29    In  highly  mineralized  areas  or in the absence of such reference streams or
 30    water bodies, the director, in consultation with the basin advisory group  and
 31    the  technical  advisers  to it, may define appropriate hypothetical reference
 32    conditions or may use monitoring data specific to  the  site  in  question  to
 33    determine conditions in which the beneficial uses are fully supported.
 34        (213) "Short-term  or  temporary activity" means an activity which is lim-
 35    ited in scope and is expected to have only minimal impact on water quality  as
 36    determined  by  the  director. Short-term or temporary activities include, but
 37    are not limited to, maintenance of existing structures, limited road and trail
 38    reconstruction, soil stabilization measures, and  habitat  enhancement  struc-
 39    tures.
 40        (224) "Silviculture"   means   those   activities   associated   with  the
 41    regeneration, growing and harvesting of trees and timber  including,  but  not
 42    limited to, disposal of logging slash, preparing sites for new stands of trees
 43    to be either planted or allowed to regenerate through natural means, road con-
 44    struction  and road maintenance, drainage of surface water which inhibits tree
 45    growth or logging operations, fertilization, application of herbicides or pes-
 46    ticides, all logging operations, and all forest management techniques employed
 47    to enhance the growth of stands of trees or timber.
 48        (235) "Soil conservation commission" means an agency of  state  government
 49    as created in section 22-2718, Idaho Code.
 50        (246) "Soil  conservation district" means an entity of state government as
 51    defined in section 22-2717, Idaho Code.
 52        (257) "State" means the state of Idaho.
 53        (268) "State water quality management plan"  means  the  state  management
 54    plan  developed and updated by the department in accordance with sections 205,
 55    208, and 303 of the federal clean water act.
                                                                        
                                           4
                                                                        
  1        (29)  "Subbasin assessment" means a document that describes a watershed or
  2    watersheds for which a total maximum daily load is proposed, the water quality
  3    concerns, the status and attainability of designated uses  and  water  quality
  4    criteria  for  individual  water  bodies, the nature and location of pollutant
  5    sources, past and ongoing pollutant control activities, and such other  infor-
  6    mation  that  the director and the local watershed advisory group determine is
  7    pertinent to the analysis of water quality and the development and implementa-
  8    tion of a total maximum daily load.
  9        (2730) "Total maximum daily load (TMDL)" means a plan for a water body not
 10    fully supporting designated beneficial uses and includes the sum of the  indi-
 11    vidual  wasteload allocations for point sources, load allocations for nonpoint
 12    sources, and natural background levels of the pollutant  impacting  the  water
 13    body. Pollutant allocations established through TMDLs shall be at a level nec-
 14    essary  to implement the applicable water quality standards for the identified
 15    pollutants with seasonal variations and a margin  of  safety  to  account  for
 16    uncertainty  concerning  the  relationship  between  the pollutant loading and
 17    water quality standards. This definition shall not be interpreted as requiring
 18    best management practices for nonpoint source activities which are not adopted
 19    on a voluntary basis.
 20        (31)  "Use  attainability  assessment"  means  a  structured,   scientific
 21    assessment  of  the beneficial uses a water body could support, given applica-
 22    tion of required effluent limits and implementation of feasible control strat-
 23    egies.
 24        (2832) "Waters or water body"  means  all  the  accumulations  of  surface
 25    water,  natural and artificial, public and private, or parts thereof which are
 26    wholly or partially within, flow through or border upon this  state.  For  the
 27    purposes  of  this chapter, water bodies shall not include municipal or indus-
 28    trial wastewater treatment or storage structures or  private  reservoirs,  the
 29    operation of which has no effect on waters of the state.
 30        (2933) "Water pollution" is such alteration of the thermal, chemical, bio-
 31    logical  or  radioactive  properties  of any waters of the state, or such dis-
 32    charge or release of any contaminant into the waters of the state as  will  or
 33    is likely to create a nuisance or render such waters harmful or detrimental or
 34    injurious  to  public  health,  safety  or welfare or to domestic, commercial,
 35    industrial, recreational, aesthetic or other legitimate uses or to  livestock,
 36    wild animals, birds, fish or other aquatic life.
 37        (34)  "Water  quality  standards"  are the designated uses of a water body
 38    and water quality criteria necessary to support those uses.
 39        (305) "Watersheds" means the land area  from  which  water  flows  into  a
 40    stream or other body of water which drains the area.  For the purposes of this
 41    chapter,  the  area  of  watersheds shall be recommended by the basin advisory
 42    group described in section 39-3613, Idaho Code.
                                                                        
 43        SECTION 2.  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 through
 49    39-3616, Idaho Code, and as required by the federal clean water act, prepare a
 50    subbasin assessment and develop a total maximum daily load to control allocate
 51    pollutant loads to point source and nonpoint sources of pollution on that dis-
 52    charge pollutants to the water body.
 53        (2)  Upon the completion of a total maximum daily load, the director shall
                                                                        
                                           5
                                                                        
  1    publish notice of the final decision on the TMDL in the  Idaho  administrative
  2    bulletin  and  provide  written  notice to members of the applicable watershed
  3    advisory group. The director's final decision shall be  based  upon  a  record
  4    that  provides the basis for the total maximum daily load. The rulemaking pro-
  5    visions in sections 67-5220 through 67-5231, Idaho Code, shall  not  apply  to
  6    TMDLs.  The  director's final decision regarding a TMDL may be appealed to the
  7    board of environmental quality in accordance  with  section  39-107(5),  Idaho
  8    Code,  and  the rules governing such appeals. The time for appeal to the board
  9    shall commence upon publication in the administrative  bulletin.  The  board's
 10    final  decision  is  subject to judicial review under section 39-107(6), Idaho
 11    Code. The provisions of this subsection shall apply to all total maximum daily
 12    loads developed by the director after January 1, 1995. Provided however,  that
 13    the  rulemaking  provisions  in  sections 67-5220 through 67-5231, Idaho Code,
 14    shall apply to TMDLs for metals in the Coeur  d'Alene  River  Basin,  upstream
 15    from  the  head  of  the  Spokane River. Provided further, that nothing herein
 16    shall modify the requirement that water quality standards  be  promulgated  as
 17    rules of the department pursuant to title 67, chapter 52, Idaho Code.
 18        (3)  For  water  bodies where an applicable water quality standard has not
 19    been attained due to impacts that occurred prior to 1972, no further  restric-
 20    tions  under  a  total  maximum  daily load process shall be placed on a point
 21    source discharge unless the point source contribution of a  pollutant  exceeds
 22    twenty-five  percent (25%) of the total load for that pollutant. Existing uses
 23    shall be maintained on all such water bodies.
 24        (4)  Subbasin assessments and tTotal maximum daily load  processes  devel-
 25    oped pursuant to this section shall include, but not be limited to:
 26        (a)  Identification of pollutant(s) impacting the water body;
 27        (b)  An inventory of all point and nonpoint sources of the identified pol-
 28        lutant(s),  if  practical, or an analysis of the land types, land uses and
 29        geographical features within the watershed that may be contributing  iden-
 30        tified pollutants to the water body;
 31        (c)  An  analysis  of  why current control strategies are not effective in
 32        assuring full support of designated beneficial uses;
 33        (d)  A plan to monitor and evaluate progress toward meeting water  quality
 34        progress  and  to  ascertain when designated beneficial uses will be fully
 35        supported standards;
 36        (e)  Feasible pPollution control strategies for  both  point  sources  and
 37        nonpoint sources for reducing those pollutant sources; of pollution;
 38        (f)  Identification  of  the period of time necessary to achieve full sup-
 39        port of designated beneficial uses through implementation of feasible con-
 40        trol strategies, which takes into account any expected changes to applica-
 41        ble water quality standards; and
 42        (g)  An adequate margin of safety to account for uncertainty.
 43        (5)  Point source discharges for  which  a  national  pollutant  discharge
 44    elimination  system  permit is approved after January 1, 1995, shall be deemed
 45    to have met the requirements of this section. Nothing in this section shall be
 46    interpreted as requiring best management practices for nonpoint source activi-
 47    ties which are not adopted on a voluntary basis.
 48        (6)  No instream target for a pollutant shall be set as  part  of  a  TMDL
 49    process  unless  the  data and analysis in the subbasin assessment demonstrate
 50    that the pollutant is causing a violation of a water quality standard  in  the
 51    stream for which the TMDL is being developed. If a pollutant load is allocated
 52    to a tributary inflow as part of a downstream TMDL, the director shall develop
 53    a  plan  to  meet such allocation in consultation with the tributary watershed
 54    advisory group as provided in subsection (8) of this section.
 55        (7)  The director  shall  review  and  reevaluate  each  TMDL,  supporting
                                                                        
                                           6
                                                                        
  1    subbasin  assessment,  implementation  plan(s) and all available data periodi-
  2    cally at intervals of no greater than  five  (5)  years.  Such  reviews  shall
  3    include the assessments required by section 39-3607, Idaho Code, and an evalu-
  4    ation  of the water quality criteria, instream targets, pollutant allocations,
  5    assumptions and analyses upon which the  TMDL  and  subbasin  assessment  were
  6    based. If the members of the watershed advisory group, with the concurrence of
  7    the  basin  advisory  group,  advise the director that the water quality stan-
  8    dards,  the  subbasin  assessment,  or  the  implementation  plan(s)  are  not
  9    attainable or are inappropriate based upon supporting data, the director shall
 10    initiate the process or  processes  to  make  recommended  modifications.  The
 11    director shall report to the legislature annually the results of such reviews.
 12        (8)  Each  TMDL  and any supporting subbasin assessment shall be developed
 13    and periodically reviewed and modified  in  consultation  with  the  watershed
 14    advisory  group  for the watershed in which the water bodies are located. Con-
 15    sultation shall include, but not be limited to:
 16        (a)  Providing the watershed advisory group with all available information
 17        concerning applicable water quality standards, water quality  data,  moni-
 18        toring,  assessments, reports, procedures and schedules for developing and
 19        submitting the TMDL and any supporting subbasin assessment to  the  United
 20        States environmental protection agency;
 21        (b)  Utilizing the knowledge, expertise, experience and information of the
 22        watershed  advisory  group  in  assessing  the  status,  attainability  or
 23        appropriateness  of  water quality standards, and in developing a TMDL and
 24        any supporting subbasin assessment; and
 25        (c)  Providing the watershed advisory group with the opportunity  to  par-
 26        ticipate  in  drafting  the  documents  for  the  TMDL  and any supporting
 27        subbasin assessment.
 28        (9)  No TMDL shall be  published  for  public  comment  or  submitted  for
 29    approval  by the United States environmental protection agency until consulta-
 30    tion, as herein provided, has occurred. If, after consultation, the  watershed
 31    advisory  group disagrees with the TMDL or any supporting subbasin assessment,
 32    or  has  determined  that  applicable  water  quality  standards   should   be
 33    reevaluated  or  revised,  such position and the basis therefor shall be docu-
 34    mented in the public notice of availability to the  TMDL  and  any  supporting
 35    subbasin  assessment  for  review,  and  in  any submission of the same to the
 36    United States environmental protection agency. The director shall  respond  to
 37    the  points  raised  by  the  watershed  advisory group and shall document the
 38    response in the final decision.
                                                                        
 39        SECTION 3.  That Section 39-3615, Idaho Code, be, and the same  is  hereby
 40    amended to read as follows:
                                                                        
 41        39-3615.  CREATION  OF  WATERSHED  ADVISORY GROUPS. (1) The director, with
 42    the advice of the appropriate basin advisory group, may shall  name  watershed
 43    advisory   groups   which   will   generally  advise  the  department  on  the
 44    appropriateness, attainability and status of existing and  designated  benefi-
 45    cial uses and water quality criteria within the watershed, and on the develop-
 46    ment  and implementation of TMDLs and other state water quality plans, includ-
 47    ing those specific actions needed to control point  and  nonpoint  sources  of
 48    pollution within the watersheds of those water bodies where designated benefi-
 49    cial  uses  are  not  fully  supported. Each watershed advisory group shall be
 50    formed  early  enough  to  complete  consultation,  as  provided  in   section
 51    39-3611(6), Idaho Code, prior to the date the TMDL and any supporting subbasin
 52    assessment  is  scheduled  to  be submitted to the United States environmental
 53    protection agency for approval.
                                                                        
                                           7
                                                                        
  1        (2)  If the members of the watershed advisory group, with the  concurrence
  2    of the basin advisory group, advise the director that applicable water quality
  3    standards  within  the watershed are not attainable or are inappropriate based
  4    upon supporting data, the director shall initiate the process or processes  to
  5    assess  such  standards and to change the standards consistent with this chap-
  6    ter.
  7        (3)  Members of each watershed advisory group shall be  representative  of
  8    the  industries  and  interests  affected by the management of that watershed,
  9    along with representatives of local government and shall,  where  appropriate,
 10    include a representative from each of the following industries or groups:
 11        (a)  Agriculture;
 12        (b)  Mining;
 13        (c)  Point source dischargers;
 14        (d)  Forest products;
 15        (e)  Local government;
 16        (f)  Livestock;
 17        (g)  Indian tribes, for areas within reservation boundaries;
 18        (h)  Water-based recreation;
 19        (i)  Environmental interests; and
 20        (j)  Tthe  land  managing  or  regulatory agencies with an interest in the
 21        management of that watershed and the quality of the  water  bodies  within
 22        it.
 23        (4)  Members of each watershed advisory group shall serve and shall not be
 24    reimbursed for their expenses during their term of service.
                                                                        
 25        SECTION  4.  That  Section 39-3616, Idaho Code, be, and the same is hereby
 26    amended to read as follows:
                                                                        
 27        39-3616.  DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
 28    group shall generally be responsible for recommending those  specific  actions
 29    needed to control point and nonpoint sources of pollution within the watershed
 30    so  that,  within  reasonable  periods of time, designated beneficial uses are
 31    fully supported and other state water quality plans  are  achieved.  Watershed
 32    advisory groups shall, as described in this chapter, consult with the director
 33    and  participate  in  the development of each TMDL and any supporting subbasin
 34    assessment for water bodies within the watershed, and shall develop and recom-
 35    mend actions needed to effectively control sources of pollution.  In  carrying
 36    out  the  provisions  of this section, the director and the watershed advisory
 37    groups shall employ all  means  of  public  involvement  deemed  necessary  or
 38    required  in  chapter 52, title 67, Idaho Code, and shall cooperate fully with
 39    the public involvement or planning processes of other appropriate public agen-
 40    cies.
                                                                        
 41        SECTION 5.  An emergency existing  therefor,  which  emergency  is  hereby
 42    declared to exist, this act shall be in full force and effect on and after its
 43    passage  and  approval, and, notwithstanding any other provision of law, shall
 44    apply to any subbasin assessment or total maximum daily load  pending  on  the
 45    effective  date  of  this act or initiated subsequent to the effective date of
 46    this act.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                                     Moved by    Pearce              
                                                                        
                                                     Seconded by Brandt              
                                                                        
                                                                        
                                       IN THE SENATE
                       SENATE AMENDMENTS TO H.B. NO. 145, As Amended
                                                                        
                                                                        
  1                               AMENDMENTS TO SECTION 1
  2        On page 1 of the engrossed bill, delete lines 18 through 21 and insert:
  3        "(2)  "Attainable" beneficial uses means uses that can be achieved by  the
  4    implementation  of  required effluent limits for point sources and cost-effec-
  5    tive and reasonable best management practices for nonpoint sources.";
  6    in line 28, delete  "and  "feasible  control  strategies"  mean  actions"  and
  7    insert:  "means  cost-effective actions in TMDL implementation plans"; on page
  8    4, in line 4, delete "director and" and insert: "director with the advice of";
  9    and also in line 4 delete "determine" and insert: "determines";  delete  lines
 10    15  through 22 and insert: "water quality standards."; in line 23, delete "32"
 11    and insert: "31"; in line 29, delete "33" and insert: "32"; in line 36, delete
 12    "34" and insert: "33";  in  line  37,  following  "uses"  insert:  ",  and  an
 13    antidegradation policy"; and in line 38, delete "5" and insert: "4".
                                                                        
 14                               AMENDMENTS TO SECTION 2
 15        On page 5, delete lines 35 and 36 and insert:
 16        "(e)  Pollution  control  strategies  for  both point sources and nonpoint
 17        sources; for reducing those sources of pollution;";
 18    in line 38, delete "feasible" and insert: "pollution"; delete lines 44 through
 19    48 and insert: "to have met the requirements of this section.";  in  line  51,
 20    following  "causing" insert: "or contributing to"; on page 6, in line 11, fol-
 21    lowing "processes" insert: "to determine whether"; in line 17, delete "Provid-
 22    ing" and insert: "Upon request, providing"; also in line 17, following "infor-
 23    mation" insert: "in the possession of the department"; in line 26, delete "the
 24    opportunity" and insert: "an adequate  opportunity";  in  line  28,  following
 25    "assessment"  insert:  "and  to suggest changes to the documents"; in line 30,
 26    delete "by" and insert: "to"; and following line 39, insert:
 27        "(10) Nothing in this section shall be interpreted as requiring best  man-
 28    agement  practices  for  agricultural nonpoint source activities which are not
 29    adopted on a voluntary basis, nor shall this section be interpreted to relieve
 30    any person from the responsibility to comply with the Idaho  forest  practices
 31    act.".
                                                                        
 32                               AMENDMENTS TO SECTION 3
 33        On  page  6,  in  line 42, delete "(1)" and insert: "Basin advisory groups
 34    shall identify representatives of the industries and other interests  affected
 35    by the management of water quality within a watershed who are prospective mem-
 36    bers  of  an advisory group for the watershed and shall advise the director of
 37    their findings."; also in line 42, delete "with" and insert: "with  upon";  in
 38    line  52,  delete "39-3611(6)" and insert: "39-3611(8)"; on page 7, in line 2,
 39    delete "(2)"; in line 6, following "change" insert: "or remove"; also in  line
 40    6,  following  "the standards" insert: "that are shown by the assessment to be
 41    unattainable or inappropriate,"; in line 8, delete "(3)"; and delete lines  11
                                 ]]]
                                                                        
                                          2
                                                                        
  1    through  21  and insert: "include a representative from each of the following:
  2    agriculture, mining, point source dischargers, forest products, local  govern-
  3    ment,  livestock,  Indian  tribes  (for  areas within reservation boundaries),
  4    water-based recreation, environmental interests and the land managing or regu-
  5    latory agencies with an interest in the"; and in line 24, delete "(4)".
                                                                        
                                          3
                                                                        
                                                     Moved by    Denney              
                                                                        
                                                     Seconded by Ellsworth           
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 145
                                                                        
  1                               AMENDMENTS TO SECTION 1
  2        On page 1 of the printed bill, delete lines  31  through  33  and  insert:
  3    "straints that affect individual enterprises and communities."; and on page 4,
  4    in  line 19 following "basis" insert: ", nor shall it be interpreted as apply-
  5    ing to the best management practices of the Idaho forest practices act".
                                                                        
  6                                AMENDMENT TO SECTION 2
  7        On page 5, in line 47 following "basis" insert: ", nor shall it be  inter-
  8    preted  as applying to the best management practices of the Idaho forest prac-
  9    tices act".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                  HOUSE BILL NO. 145, As Amended, As Amended in the Senate
                                                                        
                      BY ENVIRONMENT, ENERGY AND TECHNOLOGY COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO WATER QUALITY; AMENDING SECTION 39-3602,  IDAHO  CODE,  TO  DEFINE
  3        TERMS, TO REVISE A DEFINITION AND TO MAKE TECHNICAL CHANGES; AMENDING SEC-
  4        TION  39-3611, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO THE DEVELOP-
  5        MENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR EQUIVALENT PROCESS-
  6        ES; AMENDING SECTION 39-3615, IDAHO CODE, TO REVISE PROVISIONS  APPLICABLE
  7        TO  WATERSHED ADVISORY GROUPS AND TO MAKE TECHNICAL CHANGES; AMENDING SEC-
  8        TION 39-3616, IDAHO CODE, TO  REVISE  THE  DUTIES  OF  WATERSHED  ADVISORY
  9        GROUPS; DECLARING AN EMERGENCY AND PROVIDING FOR APPLICATION.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 39-3602, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        39-3602.  DEFINITIONS. Whenever used  or  referred  to  in  this  chapter,
 14    unless  a  different  meaning  clearly appears from the context, the following
 15    terms shall have the following meanings:
 16        (1)  "Applicable water quality standard" means those water  quality  stan-
 17    dards identified in the rules of the department.
 18        (2)  "Attainable"  beneficial  uses means uses that can be achieved by the
 19    implementation of required effluent limits for point sources  and  cost-effec-
 20    tive and reasonable best management practices for nonpoint sources.
 21        (3)  "Best  management  practice"  means practices, techniques or measures
 22    developed, or identified, by the designated agency and identified in the state
 23    water quality management plan which are determined to be a cost-effective  and
 24    practicable means of preventing or reducing pollutants generated from nonpoint
 25    sources to a level compatible with water quality goals.
 26        (34)  "Board" means the board of environmental quality.
 27        (5)  "Control strategies" means cost-effective actions in TMDL implementa-
 28    tion plans to control the discharge of pollutants that can reasonably be taken
 29    to  improve  the  water quality within the physical, operational, economic and
 30    other constraints that affect individual enterprises and communities.
 31        (46)  "Department" means the department of environmental quality.
 32        (57)  "Designated agency" means the department of lands for timber harvest
 33    activities, for oil and gas exploration and development and for mining activi-
 34    ties; the soil conservation commission for grazing activities and for agricul-
 35    tural activities; the transportation department for public road  construction;
 36    the  department of agriculture for aquaculture; and the department of environ-
 37    mental quality for all other activities.
 38        (68)  "Designated use or  designated  beneficial  use"  means  those  uses
 39    assigned to waters as identified in the rules of the department whether or not
 40    the uses are being attained. The department may adopt subcategories of a use.
 41        (79)  "Director"  means  the  director  of the department of environmental
 42    quality, or his or her designee.
 43        (810) "Discharge" means any spilling, leaking, emitting, escaping,  leach-
                                                                        
                                           2
                                                                        
  1    ing,  or  disposing  of a pollutant into the waters of the state. For the pur-
  2    poses of this chapter, discharge shall not include surface water  runoff  from
  3    nonpoint sources or natural soil disturbing events.
  4        (911) "Existing  use"  means those surface water uses actually attained on
  5    or after November 28, 1975, whether or not they are designated uses.  Existing
  6    uses may form the basis for subcategories of designated uses.
  7        (102) "Full  protection,  full  support, or full maintenance of designated
  8    beneficial uses of water"  means compliance with those levels of water quality
  9    criteria listed in the appropriate rules of the department, or where there  is
 10    no  applicable  numerical  criteria,  compliance with the reference streams or
 11    conditions approved by the director in consultation with the appropriate basin
 12    advisory group.
 13        (113) "Lower water quality" means a measurable adverse change in a  chemi-
 14    cal, physical, or biological parameter of water relevant to a designated bene-
 15    ficial use, and which can be expressed numerically.  Measurable adverse change
 16    is  determined  by a statistically significant difference between sample means
 17    using standard methods for analysis and statistical interpretation appropriate
 18    to the parameter. Statistical significance is defined as the ninety-five  per-
 19    cent (95%) confidence limit when significance is not otherwise defined for the
 20    parameter in standard methods or practices.
 21        (124) "National  pollutant discharge elimination system (NPDES)" means the
 22    point source permitting program established pursuant to  section  402  of  the
 23    federal clean water act.
 24        (135) "New  nonpoint source activity" means a new nonpoint source activity
 25    or a substantially modified existing nonpoint source activity on or  adversely
 26    affecting an outstanding resource water which includes, but is not limited to,
 27    new  silvicultural activities, new mining activities and substantial modifica-
 28    tions to an existing mining permit or approved plan, new recreational  activi-
 29    ties  and  substantial  modifications to existing recreational activities, new
 30    residential or commercial development that includes  soil  disturbing  activi-
 31    ties, new grazing activities and substantial modifications to existing grazing
 32    activities,  except  that  reissuance  of existing grazing permits, or grazing
 33    activities and practices authorized under an existing permit, is  not  consid-
 34    ered  a  new  activity. It does not include naturally occurring events such as
 35    floods, landslides, and wildfire including prescribed natural fire.
 36        (146) "Nonpoint source activities" includes grazing, crop production, sil-
 37    viculture, log storage or rafting, construction,  mining,  recreation,  septic
 38    systems, runoff from storms and other weather related events and other activi-
 39    ties  not subject to regulation under the federal national pollutant discharge
 40    elimination system. Nonpoint source activities on waters  designated  as  out-
 41    standing  resource  waters  do not include issuance of water rights permits or
 42    licenses, allocation of water rights, operation  of  diversions,  or  impound-
 43    ments.
 44        (157) "Nonpoint source runoff" means water which may carry pollutants from
 45    nonpoint source activities into the waters of the state.
 46        (168) "Outstanding  resource  water"  means  a high quality water, such as
 47    water of national and state parks and wildlife refuges  and  water  of  excep-
 48    tional  recreational  or ecological significance, which has been so designated
 49    by the legislature. It constitutes an outstanding national or  state  resource
 50    that requires protection from point source and nonpoint source activities that
 51    may lower water quality.
 52        (179) "Person" means any individual, association, partnership, firm, joint
 53    stock  company, joint venture, trust, estate, political subdivision, public or
 54    private corporation, state  or  federal  governmental  department,  agency  or
 55    instrumentality,  or  any legal entity, which is recognized by law as the sub-
                                                                        
                                           3
                                                                        
  1    ject of rights and duties.
  2        (1820) "Point source" means any discernible, confined, and  discrete  con-
  3    veyance  including, but not limited to, any pipe, ditch, channel, tunnel, con-
  4    duit, well, discrete fissure, container, rolling  stock,  concentrated  animal
  5    feeding  operation,  or  vessel or other floating craft, from which pollutants
  6    are, or may be, discharged. This term does not include return flows from irri-
  7    gated agriculture, discharges from dams and hydroelectric  generating  facili-
  8    ties or any source or activity considered a nonpoint source by definition.
  9        (1921) "Pollutant"  means dredged spoil, solid waste, incinerator residue,
 10    sewage, garbage, sewage sludge, munitions, chemical  waste,  biological  mate-
 11    rials,  radioactive  materials,  heat,  wrecked  or discarded equipment, rock,
 12    sand, silt, cellar dirt; and industrial,  municipal  and  agricultural  waste,
 13    gases  entrained  in  water;  or  other  materials  which,  when discharged or
 14    released to water in excessive quantities cause or contribute to water  pollu-
 15    tion.  Provided  however, biological materials shall not include live or occa-
 16    sional dead fish that may accidentally escape into the  waters  of  the  state
 17    from aquaculture facilities.
 18        (202) "Reference stream or condition" means one (1) of the following:
 19        (a)  The minimum biological, physical and chemical conditions necessary to
 20        fully support the designated beneficial uses; or
 21        (b)  A  water  body  representing natural conditions with few impacts from
 22        human activities and which are representative of the highest level of sup-
 23        port attainable in the basin; or
 24        (c)  A water body representing minimum conditions necessary to fully  sup-
 25        port the designated beneficial uses.
 26    In  highly  mineralized  areas  or in the absence of such reference streams or
 27    water bodies, the director, in consultation with the basin advisory group  and
 28    the  technical  advisers  to it, may define appropriate hypothetical reference
 29    conditions or may use monitoring data specific to  the  site  in  question  to
 30    determine conditions in which the beneficial uses are fully supported.
 31        (213) "Short-term  or  temporary activity" means an activity which is lim-
 32    ited in scope and is expected to have only minimal impact on water quality  as
 33    determined  by  the  director. Short-term or temporary activities include, but
 34    are not limited to, maintenance of existing structures, limited road and trail
 35    reconstruction, soil stabilization measures, and  habitat  enhancement  struc-
 36    tures.
 37        (224) "Silviculture"   means   those   activities   associated   with  the
 38    regeneration, growing and harvesting of trees and timber  including,  but  not
 39    limited to, disposal of logging slash, preparing sites for new stands of trees
 40    to be either planted or allowed to regenerate through natural means, road con-
 41    struction  and road maintenance, drainage of surface water which inhibits tree
 42    growth or logging operations, fertilization, application of herbicides or pes-
 43    ticides, all logging operations, and all forest management techniques employed
 44    to enhance the growth of stands of trees or timber.
 45        (235) "Soil conservation commission" means an agency of  state  government
 46    as created in section 22-2718, Idaho Code.
 47        (246) "Soil  conservation district" means an entity of state government as
 48    defined in section 22-2717, Idaho Code.
 49        (257) "State" means the state of Idaho.
 50        (268) "State water quality management plan"  means  the  state  management
 51    plan  developed and updated by the department in accordance with sections 205,
 52    208, and 303 of the federal clean water act.
 53        (29)  "Subbasin assessment" means a document that describes a watershed or
 54    watersheds for which a total maximum daily load is proposed, the water quality
 55    concerns, the status and attainability of designated uses  and  water  quality
                                                                        
                                           4
                                                                        
  1    criteria  for  individual  water  bodies, the nature and location of pollutant
  2    sources, past and ongoing pollutant control activities, and such other  infor-
  3    mation that the director with the advice of the local watershed advisory group
  4    determines  is  pertinent to the analysis of water quality and the development
  5    and implementation of a total maximum daily load.
  6        (2730) "Total maximum daily load (TMDL)" means a plan for a water body not
  7    fully supporting designated beneficial uses and includes the sum of the  indi-
  8    vidual  wasteload allocations for point sources, load allocations for nonpoint
  9    sources, and natural background levels of the pollutant  impacting  the  water
 10    body. Pollutant allocations established through TMDLs shall be at a level nec-
 11    essary  to implement the applicable water quality standards for the identified
 12    pollutants with seasonal variations and a margin  of  safety  to  account  for
 13    uncertainty  concerning  the  relationship  between  the pollutant loading and
 14    water quality standards.
 15        (2831) "Waters or water body"  means  all  the  accumulations  of  surface
 16    water,  natural and artificial, public and private, or parts thereof which are
 17    wholly or partially within, flow through or border upon this  state.  For  the
 18    purposes  of  this chapter, water bodies shall not include municipal or indus-
 19    trial wastewater treatment or storage structures or  private  reservoirs,  the
 20    operation of which has no effect on waters of the state.
 21        (2932) "Water pollution" is such alteration of the thermal, chemical, bio-
 22    logical  or  radioactive  properties  of any waters of the state, or such dis-
 23    charge or release of any contaminant into the waters of the state as  will  or
 24    is likely to create a nuisance or render such waters harmful or detrimental or
 25    injurious  to  public  health,  safety  or welfare or to domestic, commercial,
 26    industrial, recreational, aesthetic or other legitimate uses or to  livestock,
 27    wild animals, birds, fish or other aquatic life.
 28        (33) "Water quality standards" are the designated uses of a water body and
 29    water quality criteria necessary to support those uses, and an antidegradation
 30    policy.
 31        (304) "Watersheds"  means  the  land  area  from  which water flows into a
 32    stream or other body of water which drains the area.  For the purposes of this
 33    chapter, the area of watersheds shall be recommended  by  the  basin  advisory
 34    group described in section 39-3613, Idaho Code.
                                                                        
 35        SECTION  2.  That  Section 39-3611, Idaho Code, be, and the same is hereby
 36    amended to read as follows:
                                                                        
 37        39-3611.  DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM  DAILY  LOAD  OR
 38    EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
 39    Code,  the director shall, in accordance with the priorities set forth in sec-
 40    tion 39-3610, Idaho Code, and in accordance with sections 39-3614 and  through
 41    39-3616, Idaho Code, and as required by the federal clean water act, prepare a
 42    subbasin assessment and develop a total maximum daily load to control allocate
 43    pollutant loads to point source and nonpoint sources of pollution on that dis-
 44    charge 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
 53    Code, and the rules governing such appeals. The time for appeal to  the  board
                                                                        
                                           5
                                                                        
  1    shall  commence  upon  publication in the administrative bulletin. The board's
  2    final decision is subject to judicial review under  section  39-107(6),  Idaho
  3    Code. The provisions of this subsection shall apply to all total maximum daily
  4    loads  developed by the director after January 1, 1995. Provided however, that
  5    the rulemaking provisions in sections 67-5220  through  67-5231,  Idaho  Code,
  6    shall  apply  to  TMDLs  for metals in the Coeur d'Alene River Basin, upstream
  7    from the head of the Spokane River.  Provided  further,  that  nothing  herein
  8    shall  modify  the  requirement that water quality standards be promulgated as
  9    rules of the department pursuant to title 67, chapter 52, Idaho Code.
 10        (3)  For water bodies where an applicable water quality standard  has  not
 11    been  attained due to impacts that occurred prior to 1972, no further restric-
 12    tions under a total maximum daily load process shall  be  placed  on  a  point
 13    source  discharge  unless the point source contribution of a pollutant exceeds
 14    twenty-five percent (25%) of the total load for that pollutant. Existing  uses
 15    shall be maintained on all such water bodies.
 16        (4)  Subbasin  assessments  and tTotal maximum daily load processes devel-
 17    oped pursuant to this section shall include, but not be limited to:
 18        (a)  Identification of pollutant(s) impacting the water body;
 19        (b)  An inventory of all point and nonpoint sources of the identified pol-
 20        lutant(s), if practical, or an analysis of the land types, land  uses  and
 21        geographical  features within the watershed that may be contributing iden-
 22        tified pollutants to the water body;
 23        (c)  An analysis of why current control strategies are  not  effective  in
 24        assuring full support of designated beneficial uses;
 25        (d)  A  plan to monitor and evaluate progress toward meeting water quality
 26        progress and to ascertain when designated beneficial uses  will  be  fully
 27        supported standards;
 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 through implementation of pollution
 32        control strategies, which takes  into  account  any  expected  changes  to
 33        applicable water quality standards; and
 34        (g)  An adequate margin of safety to account for uncertainty.
 35        (5)  Point  source  discharges  for  which  a national pollutant discharge
 36    elimination system permit is approved after January 1, 1995, shall  be  deemed
 37    to have met the requirements of this section.
 38        (6)  No  instream  target  for  a pollutant shall be set as part of a TMDL
 39    process unless the data and analysis in the  subbasin  assessment  demonstrate
 40    that  the pollutant is causing or contributing to a violation of a water qual-
 41    ity standard in the stream for which the TMDL is being developed. If a pollut-
 42    ant load is allocated to a tributary inflow as part of a downstream TMDL,  the
 43    director shall develop a plan to meet such allocation in consultation with the
 44    tributary  watershed advisory group as provided in subsection (8) of this sec-
 45    tion.
 46        (7)  The director  shall  review  and  reevaluate  each  TMDL,  supporting
 47    subbasin  assessment,  implementation  plan(s) and all available data periodi-
 48    cally at intervals of no greater than  five  (5)  years.  Such  reviews  shall
 49    include the assessments required by section 39-3607, Idaho Code, and an evalu-
 50    ation  of the water quality criteria, instream targets, pollutant allocations,
 51    assumptions and analyses upon which the  TMDL  and  subbasin  assessment  were
 52    based. If the members of the watershed advisory group, with the concurrence of
 53    the  basin  advisory  group,  advise the director that the water quality stan-
 54    dards,  the  subbasin  assessment,  or  the  implementation  plan(s)  are  not
 55    attainable or are inappropriate based upon supporting data, the director shall
                                                                        
                                           6
                                                                        
  1    initiate the process or processes to determine  whether  to  make  recommended
  2    modifications.  The  director  shall  report  to  the legislature annually the
  3    results of such reviews.
  4        (8)  Each TMDL and any supporting subbasin assessment shall  be  developed
  5    and  periodically  reviewed  and  modified  in consultation with the watershed
  6    advisory group for the watershed in which the water bodies are  located.  Con-
  7    sultation shall include, but not be limited to:
  8        (a)  Upon  request, providing the watershed advisory group with all avail-
  9        able information in the possession of the department concerning applicable
 10        water quality standards,  water  quality  data,  monitoring,  assessments,
 11        reports,  procedures  and schedules for developing and submitting the TMDL
 12        and any supporting subbasin assessment to the United States  environmental
 13        protection agency;
 14        (b)  Utilizing the knowledge, expertise, experience and information of the
 15        watershed  advisory  group  in  assessing  the  status,  attainability  or
 16        appropriateness  of  water quality standards, and in developing a TMDL and
 17        any supporting subbasin assessment; and
 18        (c)  Providing the watershed advisory group with an  adequate  opportunity
 19        to  participate  in drafting the documents for the TMDL and any supporting
 20        subbasin assessment and to suggest changes to the documents.
 21        (9)  No TMDL shall be  published  for  public  comment  or  submitted  for
 22    approval  to the United States environmental protection agency until consulta-
 23    tion, as herein provided, has occurred. If, after consultation, the  watershed
 24    advisory  group disagrees with the TMDL or any supporting subbasin assessment,
 25    or  has  determined  that  applicable  water  quality  standards   should   be
 26    reevaluated  or  revised,  such position and the basis therefor shall be docu-
 27    mented in the public notice of availability to the  TMDL  and  any  supporting
 28    subbasin  assessment  for  review,  and  in  any submission of the same to the
 29    United States environmental protection agency. The director shall  respond  to
 30    the  points  raised  by  the  watershed  advisory group and shall document the
 31    response in the final decision.
 32        (10) Nothing in this section shall be interpreted as requiring  best  man-
 33    agement  practices  for  agricultural nonpoint source activities which are not
 34    adopted on a voluntary basis, nor shall this section be interpreted to relieve
 35    any person from the responsibility to comply with the Idaho  forest  practices
 36    act.
                                                                        
 37        SECTION  3.  That  Section 39-3615, Idaho Code, be, and the same is hereby
 38    amended to read as follows:
                                                                        
 39        39-3615.  CREATION OF WATERSHED ADVISORY  GROUPS.  Basin  advisory  groups
 40    shall  identify representatives of the industries and other interests affected
 41    by the management of water quality within a watershed who are prospective mem-
 42    bers of an advisory group for the watershed and shall advise the  director  of
 43    their  findings.  The  director, with upon the advice of the appropriate basin
 44    advisory group, may shall name watershed advisory groups which will  generally
 45    advise  the  department  on  the  appropriateness, attainability and status of
 46    existing and designated beneficial uses and water quality criteria within  the
 47    watershed,  and on the development and implementation of TMDLs and other state
 48    water quality plans, including those specific actions needed to control  point
 49    and  nonpoint sources of pollution within the watersheds of those water bodies
 50    where designated beneficial uses are not fully supported. Each watershed advi-
 51    sory group shall be formed early enough to complete consultation, as  provided
 52    in section 39-3611(8), Idaho Code, prior to the date the TMDL and any support-
 53    ing  subbasin  assessment  is  scheduled  to be submitted to the United States
                                                                        
                                           7
                                                                        
  1    environmental protection agency for approval.
  2        If the members of the watershed advisory group, with  the  concurrence  of
  3    the  basin  advisory  group, advise the director that applicable water quality
  4    standards within the watershed are not attainable or are  inappropriate  based
  5    upon  supporting data, the director shall initiate the process or processes to
  6    assess such standards and to change or remove the standards that are shown  by
  7    the assessment to be unattainable or inappropriate, consistent with this chap-
  8    ter.
  9        Members  of  each  watershed advisory group shall be representative of the
 10    industries and interests affected by the management of that  watershed,  along
 11    with representatives of local government and shall, where appropriate, include
 12    a representative from each of the following: agriculture, mining, point source
 13    dischargers,  forest products, local government, livestock, Indian tribes (for
 14    areas within reservation boundaries),  water-based  recreation,  environmental
 15    interests and the land managing or regulatory agencies with an interest in the
 16    management of that watershed and the quality of the water bodies within it.
 17        Members  of  each  watershed  advisory  group shall serve and shall not be
 18    reimbursed for their expenses during their term of service.
                                                                        
 19        SECTION 4.  That Section 39-3616, Idaho Code, be, and the same  is  hereby
 20    amended to read as follows:
                                                                        
 21        39-3616.  DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
 22    group  shall  generally be responsible for recommending those specific actions
 23    needed to control point and nonpoint sources of pollution within the watershed
 24    so that, within reasonable periods of time,  designated  beneficial  uses  are
 25    fully  supported  and  other state water quality plans are achieved. Watershed
 26    advisory groups shall, as described in this chapter, consult with the director
 27    and participate in the development of each TMDL and  any  supporting  subbasin
 28    assessment for water bodies within the watershed, and shall develop and recom-
 29    mend  actions  needed to effectively control sources of pollution. In carrying
 30    out the provisions of this section, the director and  the  watershed  advisory
 31    groups  shall  employ  all  means  of  public  involvement deemed necessary or
 32    required in chapter 52, title 67, Idaho Code, and shall cooperate  fully  with
 33    the public involvement or planning processes of other appropriate public agen-
 34    cies.
                                                                        
 35        SECTION  5.  An  emergency  existing  therefor,  which emergency is hereby
 36    declared to exist, this act shall be in full force and effect on and after its
 37    passage and approval, and, notwithstanding any other provision of  law,  shall
 38    apply  to  any  subbasin assessment or total maximum daily load pending on the
 39    effective date of this act or initiated subsequent to the  effective  date  of
 40    this act.
                                                                        
                                           8
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 145, As Amended
                                                                        
                      BY ENVIRONMENT, ENERGY AND TECHNOLOGY COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING  TO  WATER  QUALITY;  AMENDING SECTION 39-3602, IDAHO CODE, TO DEFINE
  3        TERMS, TO REVISE A DEFINITION AND TO MAKE TECHNICAL CHANGES; AMENDING SEC-
  4        TION 39-3611, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO THE  DEVELOP-
  5        MENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR EQUIVALENT PROCESS-
  6        ES;  AMENDING SECTION 39-3615, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE
  7        TO WATERSHED ADVISORY GROUPS AND TO MAKE TECHNICAL CHANGES; AMENDING  SEC-
  8        TION  39-3616,  IDAHO  CODE,  TO  REVISE  THE DUTIES OF WATERSHED ADVISORY
  9        GROUPS; DECLARING AN EMERGENCY AND PROVIDING FOR APPLICATION.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION 6.  That Section 39-3602, Idaho Code, be, and the same  is  hereby
 12    amended to read as follows:
                                                                        
 13        39-3602.  DEFINITIONS.  Whenever  used  or  referred  to  in this chapter,
 14    unless a different meaning clearly appears from  the  context,  the  following
 15    terms shall have the following meanings:
 16        (1)  "Applicable  water  quality standard" means those water quality stan-
 17    dards identified in the rules of the department.
 18        (2)  "Attainable" water quality, water quality standards, uses and  crite-
 19    ria  means  water quality, water quality standards, uses and criteria that can
 20    be achieved through implementation of feasible control strategies on a  broad,
 21    watershed basis.
 22        (3)  "Best  management  practice"  means practices, techniques or measures
 23    developed, or identified, by the designated agency and identified in the state
 24    water quality management plan which are determined to be a cost-effective  and
 25    practicable means of preventing or reducing pollutants generated from nonpoint
 26    sources to a level compatible with water quality goals.
 27        (34)  "Board" means the board of environmental quality.
 28        (5)  "Control  strategies"  and "feasible control strategies" mean actions
 29    to control the discharge of pollutants that can reasonably be taken to improve
 30    the water quality within the physical, operational, economic  and  other  con-
 31    straints that affect individual enterprises and communities.
 32        (46)  "Department" means the department of environmental quality.
 33        (57)  "Designated agency" means the department of lands for timber harvest
 34    activities, for oil and gas exploration and development and for mining activi-
 35    ties; the soil conservation commission for grazing activities and for agricul-
 36    tural  activities; the transportation department for public road construction;
 37    the department of agriculture for aquaculture; and the department of  environ-
 38    mental quality for all other activities.
 39        (68)  "Designated  use  or  designated  beneficial  use"  means those uses
 40    assigned to waters as identified in the rules of the department whether or not
 41    the uses are being attained. The department may adopt subcategories of a use.
 42        (79)  "Director" means the director of  the  department  of  environmental
 43    quality, or his or her designee.
 44        (810) "Discharge"  means any spilling, leaking, emitting, escaping, leach-
 45    ing, or disposing of a pollutant into the waters of the state.  For  the  pur-
 46    poses  of  this chapter, discharge shall not include surface water runoff from
                                                                        
                                           9
                                                                        
  1    nonpoint sources or natural soil disturbing events.
  2        (911)  "Existing use" means those surface water uses actually attained  on
  3    or  after November 28, 1975, whether or not they are designated uses. Existing
  4    uses may form the basis for subcategories of designated uses.
  5        (102) "Full protection, full support, or full  maintenance  of  designated
  6    beneficial uses of water"  means compliance with those levels of water quality
  7    criteria  listed in the appropriate rules of the department, or where there is
  8    no applicable numerical criteria, compliance with  the  reference  streams  or
  9    conditions approved by the director in consultation with the appropriate basin
 10    advisory group.
 11        (113) "Lower  water quality" means a measurable adverse change in a chemi-
 12    cal, physical, or biological parameter of water relevant to a designated bene-
 13    ficial use, and which can be expressed numerically.  Measurable adverse change
 14    is determined by a statistically significant difference between  sample  means
 15    using standard methods for analysis and statistical interpretation appropriate
 16    to  the parameter. Statistical significance is defined as the ninety-five per-
 17    cent (95%) confidence limit when significance is not otherwise defined for the
 18    parameter in standard methods or practices.
 19        (124) "National pollutant discharge elimination system (NPDES)" means  the
 20    point  source  permitting  program  established pursuant to section 402 of the
 21    federal clean water act.
 22        (135) "New nonpoint source activity" means a new nonpoint source  activity
 23    or  a substantially modified existing nonpoint source activity on or adversely
 24    affecting an outstanding resource water which includes, but is not limited to,
 25    new silvicultural activities, new mining activities and substantial  modifica-
 26    tions  to an existing mining permit or approved plan, new recreational activi-
 27    ties and substantial modifications to existing  recreational  activities,  new
 28    residential  or  commercial  development that includes soil disturbing activi-
 29    ties, new grazing activities and substantial modifications to existing grazing
 30    activities, except that reissuance of existing  grazing  permits,  or  grazing
 31    activities  and  practices authorized under an existing permit, is not consid-
 32    ered a new activity. It does not include naturally occurring  events  such  as
 33    floods, landslides, and wildfire including prescribed natural fire.
 34        (146) "Nonpoint source activities" includes grazing, crop production, sil-
 35    viculture,  log  storage  or rafting, construction, mining, recreation, septic
 36    systems, runoff from storms and other weather related events and other activi-
 37    ties not subject to regulation under the federal national pollutant  discharge
 38    elimination  system.  Nonpoint  source activities on waters designated as out-
 39    standing resource waters do not include issuance of water  rights  permits  or
 40    licenses,  allocation  of  water  rights, operation of diversions, or impound-
 41    ments.
 42        (157) "Nonpoint source runoff" means water which may carry pollutants from
 43    nonpoint source activities into the waters of the state.
 44        (168) "Outstanding resource water" means a high  quality  water,  such  as
 45    water  of  national  and  state parks and wildlife refuges and water of excep-
 46    tional recreational or ecological significance, which has been  so  designated
 47    by  the  legislature. It constitutes an outstanding national or state resource
 48    that requires protection from point source and nonpoint source activities that
 49    may lower water quality.
 50        (179) "Person" means any individual, association, partnership, firm, joint
 51    stock company, joint venture, trust, estate, political subdivision, public  or
 52    private  corporation,  state  or  federal  governmental  department, agency or
 53    instrumentality, or any legal entity, which is recognized by law as  the  sub-
 54    ject of rights and duties.
 55        (1820) "Point  source"  means any discernible, confined, and discrete con-
                                                                        
                                           10
                                                                        
  1    veyance including, but not limited to, any pipe, ditch, channel, tunnel,  con-
  2    duit,  well,  discrete  fissure, container, rolling stock, concentrated animal
  3    feeding operation, or vessel or other floating craft,  from  which  pollutants
  4    are, or may be, discharged. This term does not include return flows from irri-
  5    gated  agriculture,  discharges from dams and hydroelectric generating facili-
  6    ties or any source or activity considered a nonpoint source by definition.
  7        (1921) "Pollutant" means dredged spoil, solid waste, incinerator  residue,
  8    sewage,  garbage,  sewage  sludge, munitions, chemical waste, biological mate-
  9    rials, radioactive materials, heat,  wrecked  or  discarded  equipment,  rock,
 10    sand,  silt,  cellar  dirt;  and industrial, municipal and agricultural waste,
 11    gases entrained in  water;  or  other  materials  which,  when  discharged  or
 12    released  to water in excessive quantities cause or contribute to water pollu-
 13    tion. Provided however, biological materials shall not include live  or  occa-
 14    sional  dead  fish  that  may accidentally escape into the waters of the state
 15    from aquaculture facilities.
 16        (202) "Reference stream or condition" means one (1) of the following:
 17        (a)  The minimum biological, physical and chemical conditions necessary to
 18        fully support the designated beneficial uses; or
 19        (b)  A water body representing natural conditions with  few  impacts  from
 20        human activities and which are representative of the highest level of sup-
 21        port attainable in the basin; or
 22        (c)  A  water body representing minimum conditions necessary to fully sup-
 23        port the designated beneficial uses.
 24    In highly mineralized areas or in the absence of  such  reference  streams  or
 25    water  bodies, the director, in consultation with the basin advisory group and
 26    the technical advisers to it, may define  appropriate  hypothetical  reference
 27    conditions  or  may  use  monitoring  data specific to the site in question to
 28    determine conditions in which the beneficial uses are fully supported.
 29        (213) "Short-term or temporary activity" means an activity which  is  lim-
 30    ited  in scope and is expected to have only minimal impact on water quality as
 31    determined by the director. Short-term or temporary  activities  include,  but
 32    are not limited to, maintenance of existing structures, limited road and trail
 33    reconstruction,  soil  stabilization  measures, and habitat enhancement struc-
 34    tures.
 35        (224) "Silviculture"  means   those   activities   associated   with   the
 36    regeneration,  growing  and  harvesting of trees and timber including, but not
 37    limited to, disposal of logging slash, preparing sites for new stands of trees
 38    to be either planted or allowed to regenerate through natural means, road con-
 39    struction and road maintenance, drainage of surface water which inhibits  tree
 40    growth or logging operations, fertilization, application of herbicides or pes-
 41    ticides, all logging operations, and all forest management techniques employed
 42    to enhance the growth of stands of trees or timber.
 43        (235) "Soil  conservation  commission" means an agency of state government
 44    as created in section 22-2718, Idaho Code.
 45        (246) "Soil conservation district" means an entity of state government  as
 46    defined in section 22-2717, Idaho Code.
 47        (257) "State" means the state of Idaho.
 48        (268) "State  water  quality  management  plan" means the state management
 49    plan developed and updated by the department in accordance with sections  205,
 50    208, and 303 of the federal clean water act.
 51        (29)  "Subbasin assessment" means a document that describes a watershed or
 52    watersheds for which a total maximum daily load is proposed, the water quality
 53    concerns,  the  status  and attainability of designated uses and water quality
 54    criteria for individual water bodies, the nature  and  location  of  pollutant
 55    sources,  past and ongoing pollutant control activities, and such other infor-
                                                                        
                                           11
                                                                        
  1    mation that the director and the local watershed advisory group  determine  is
  2    pertinent to the analysis of water quality and the development and implementa-
  3    tion of a total maximum daily load.
  4        (2730) "Total maximum daily load (TMDL)" means a plan for a water body not
  5    fully  supporting designated beneficial uses and includes the sum of the indi-
  6    vidual wasteload allocations for point sources, load allocations for  nonpoint
  7    sources,  and  natural  background levels of the pollutant impacting the water
  8    body. Pollutant allocations established through TMDLs shall be at a level nec-
  9    essary to implement the applicable water quality standards for the  identified
 10    pollutants  with  seasonal  variations  and  a margin of safety to account for
 11    uncertainty concerning the relationship  between  the  pollutant  loading  and
 12    water quality standards. This definition shall not be interpreted as requiring
 13    best management practices for nonpoint source activities which are not adopted
 14    on a voluntary basis, nor shall it be interpreted as applying to the best man-
 15    agement practices of the Idaho forest practices act.
 16        (31)  "Use   attainability  assessment"  means  a  structured,  scientific
 17    assessment of the beneficial uses a water body could support,  given  applica-
 18    tion of required effluent limits and implementation of feasible control strat-
 19    egies.
 20        (2832) "Waters  or  water  body"  means  all  the accumulations of surface
 21    water, natural and artificial, public and private, or parts thereof which  are
 22    wholly  or  partially  within, flow through or border upon this state. For the
 23    purposes of this chapter, water bodies shall not include municipal  or  indus-
 24    trial  wastewater  treatment  or storage structures or private reservoirs, the
 25    operation of which has no effect on waters of the state.
 26        (2933) "Water pollution" is such alteration of the thermal, chemical, bio-
 27    logical or radioactive properties of any waters of the  state,  or  such  dis-
 28    charge  or  release of any contaminant into the waters of the state as will or
 29    is likely to create a nuisance or render such waters harmful or detrimental or
 30    injurious to public health, safety or  welfare  or  to  domestic,  commercial,
 31    industrial,  recreational, aesthetic or other legitimate uses or to livestock,
 32    wild animals, birds, fish or other aquatic life.
 33        (34)  "Water quality standards" are the designated uses of  a  water  body
 34    and water quality criteria necessary to support those uses.
 35        (305) "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  7.  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, prepare a
 46    subbasin assessment and develop a total maximum daily load to control allocate
 47    pollutant loads to point source and nonpoint sources of pollution on that dis-
 48    charge pollutants to the water body.
 49        (2)  Upon the completion of a total maximum daily load, the director shall
 50    publish  notice  of the final decision on the TMDL in the Idaho administrative
 51    bulletin and provide written notice to members  of  the  applicable  watershed
 52    advisory  group.  The  director's  final decision shall be based upon a record
 53    that provides the basis for the total maximum daily load. The rulemaking  pro-
                                                                        
                                           12
                                                                        
  1    visions  in  sections  67-5220 through 67-5231, Idaho Code, shall not apply to
  2    TMDLs. The director's final decision regarding a TMDL may be appealed  to  the
  3    board  of  environmental  quality  in accordance with section 39-107(5), Idaho
  4    Code, and the rules governing such appeals. The time for appeal to  the  board
  5    shall  commence  upon  publication in the administrative bulletin. The board's
  6    final decision is subject to judicial review under  section  39-107(6),  Idaho
  7    Code. The provisions of this subsection shall apply to all total maximum daily
  8    loads  developed by the director after January 1, 1995. Provided however, that
  9    the rulemaking provisions in sections 67-5220  through  67-5231,  Idaho  Code,
 10    shall  apply  to  TMDLs  for metals in the Coeur d'Alene River Basin, upstream
 11    from the head of the Spokane River.  Provided  further,  that  nothing  herein
 12    shall  modify  the  requirement that water quality standards be promulgated as
 13    rules of the department pursuant to title 67, chapter 52, Idaho Code.
 14        (3)  For water bodies where an applicable water quality standard  has  not
 15    been  attained due to impacts that occurred prior to 1972, no further restric-
 16    tions under a total maximum daily load process shall  be  placed  on  a  point
 17    source  discharge  unless the point source contribution of a pollutant exceeds
 18    twenty-five percent (25%) of the total load for that pollutant. Existing  uses
 19    shall be maintained on all such water bodies.
 20        (4)  Subbasin  assessments  and tTotal maximum daily load processes devel-
 21    oped pursuant to this section shall include, but not be limited to:
 22        (a)  Identification of pollutant(s) impacting the water body;
 23        (b)  An inventory of all point and nonpoint sources of the identified pol-
 24        lutant(s), if practical, or an analysis of the land types, land  uses  and
 25        geographical  features within the watershed that may be contributing iden-
 26        tified pollutants to the water body;
 27        (c)  An analysis of why current control strategies are  not  effective  in
 28        assuring full support of designated beneficial uses;
 29        (d)  A  plan to monitor and evaluate progress toward meeting water quality
 30        progress and to ascertain when designated beneficial uses  will  be  fully
 31        supported standards;
 32        (e)  Feasible  pPollution  control  strategies  for both point sources and
 33        nonpoint sources for reducing those pollutant sources; of pollution;
 34        (f)  Identification of the period of time necessary to achieve  full  sup-
 35        port of designated beneficial uses through implementation of feasible con-
 36        trol strategies, which takes into account any expected changes to applica-
 37        ble water quality standards; 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. Nothing in this section shall be
 42    interpreted as requiring best management practices for nonpoint source activi-
 43    ties  which  are not adopted on a voluntary basis, nor shall it be interpreted
 44    as applying to the best management practices of  the  Idaho  forest  practices
 45    act.
 46        (6)  No  instream  target  for  a pollutant shall be set as part of a TMDL
 47    process unless the data and analysis in the  subbasin  assessment  demonstrate
 48    that  the  pollutant is causing a violation of a water quality standard in the
 49    stream for which the TMDL is being developed. If a pollutant load is allocated
 50    to a tributary inflow as part of a downstream TMDL, the director shall develop
 51    a plan to meet such allocation in consultation with  the  tributary  watershed
 52    advisory group as provided in subsection (8) of this section.
 53        (7)  The  director  shall  review  and  reevaluate  each  TMDL, supporting
 54    subbasin assessment, implementation plan(s) and all  available  data  periodi-
 55    cally  at  intervals  of  no  greater  than five (5) years. Such reviews shall
                                                                        
                                           13
                                                                        
  1    include the assessments required by section 39-3607, Idaho Code, and an evalu-
  2    ation of the water quality criteria, instream targets, pollutant  allocations,
  3    assumptions  and  analyses  upon  which  the TMDL and subbasin assessment were
  4    based. If the members of the watershed advisory group, with the concurrence of
  5    the basin advisory group, advise the director that  the  water  quality  stan-
  6    dards,  the  subbasin  assessment,  or  the  implementation  plan(s)  are  not
  7    attainable or are inappropriate based upon supporting data, the director shall
  8    initiate  the  process  or  processes  to  make recommended modifications. The
  9    director shall report to the legislature annually the results of such reviews.
 10        (8)  Each TMDL and any supporting subbasin assessment shall  be  developed
 11    and  periodically  reviewed  and  modified  in consultation with the watershed
 12    advisory group for the watershed in which the water bodies are  located.  Con-
 13    sultation shall include, but not be limited to:
 14        (a)  Providing the watershed advisory group with all available information
 15        concerning  applicable  water quality standards, water quality data, moni-
 16        toring, assessments, reports, procedures and schedules for developing  and
 17        submitting  the  TMDL and any supporting subbasin assessment to the United
 18        States environmental protection agency;
 19        (b)  Utilizing the knowledge, expertise, experience and information of the
 20        watershed  advisory  group  in  assessing  the  status,  attainability  or
 21        appropriateness of water quality standards, and in developing a  TMDL  and
 22        any supporting subbasin assessment; and
 23        (c)  Providing  the  watershed advisory group with the opportunity to par-
 24        ticipate in drafting  the  documents  for  the  TMDL  and  any  supporting
 25        subbasin assessment.
 26        (9)  No  TMDL  shall  be  published  for  public  comment or submitted for
 27    approval by the United States environmental protection agency until  consulta-
 28    tion,  as herein provided, has occurred. If, after consultation, the watershed
 29    advisory group disagrees with the TMDL or any supporting subbasin  assessment,
 30    or   has   determined  that  applicable  water  quality  standards  should  be
 31    reevaluated or revised, such position and the basis therefor  shall  be  docu-
 32    mented  in  the  public  notice of availability to the TMDL and any supporting
 33    subbasin assessment for review, and in any  submission  of  the  same  to  the
 34    United  States  environmental protection agency. The director shall respond to
 35    the points raised by the watershed  advisory  group  and  shall  document  the
 36    response in the final decision.
                                                                        
 37        SECTION  8.  That  Section 39-3615, Idaho Code, be, and the same is hereby
 38    amended to read as follows:
                                                                        
 39        39-3615.  CREATION OF WATERSHED ADVISORY GROUPS. (1)  The  director,  with
 40    the  advice  of the appropriate basin advisory group, may shall name watershed
 41    advisory  groups  which  will  generally  advise   the   department   on   the
 42    appropriateness,  attainability  and status of existing and designated benefi-
 43    cial uses and water quality criteria within the watershed, and on the develop-
 44    ment and implementation of TMDLs and other state water quality plans,  includ-
 45    ing  those  specific  actions  needed to control point and nonpoint sources of
 46    pollution within the watersheds of those water bodies where designated benefi-
 47    cial uses are not fully supported. Each  watershed  advisory  group  shall  be
 48    formed   early  enough  to  complete  consultation,  as  provided  in  section
 49    39-3611(6), Idaho Code, prior to the date the TMDL and any supporting subbasin
 50    assessment is scheduled to be submitted to  the  United  States  environmental
 51    protection agency for approval.
 52        (2)  If  the members of the watershed advisory group, with the concurrence
 53    of the basin advisory group, advise the director that applicable water quality
                                                                        
                                           14
                                                                        
  1    standards within the watershed are not attainable or are  inappropriate  based
  2    upon  supporting data, the director shall initiate the process or processes to
  3    assess such standards and to change the standards consistent with  this  chap-
  4    ter.
  5        (3)  Members  of  each watershed advisory group shall be representative of
  6    the industries and interests affected by the  management  of  that  watershed,
  7    along  with  representatives of local government and shall, where appropriate,
  8    include a representative from each of the following industries or groups:
  9        (a)  Agriculture;
 10        (b)  Mining;
 11        (c)  Point source dischargers;
 12        (d)  Forest products;
 13        (e)  Local government;
 14        (f)  Livestock;
 15        (g)  Indian tribes, for areas within reservation boundaries;
 16        (h)  Water-based recreation;
 17        (i)  Environmental interests; and
 18        (j)  Tthe land managing or regulatory agencies with  an  interest  in  the
 19        management  of  that  watershed and the quality of the water bodies within
 20        it.
 21        (4)  Members of each watershed advisory group shall serve and shall not be
 22    reimbursed for their expenses during their term of service.
                                                                        
 23        SECTION 9.  That Section 39-3616, Idaho Code, be, and the same  is  hereby
 24    amended to read as follows:
                                                                        
 25        39-3616.  DUTIES OF EACH WATERSHED ADVISORY GROUP. Each watershed advisory
 26    group  shall  generally be responsible for recommending those specific actions
 27    needed to control point and nonpoint sources of pollution within the watershed
 28    so that, within reasonable periods of time,  designated  beneficial  uses  are
 29    fully  supported  and  other state water quality plans are achieved. Watershed
 30    advisory groups shall, as described in this chapter, consult with the director
 31    and participate in the development of each TMDL and  any  supporting  subbasin
 32    assessment for water bodies within the watershed, and shall develop and recom-
 33    mend  actions  needed to effectively control sources of pollution. In carrying
 34    out the provisions of this section, the director and  the  watershed  advisory
 35    groups  shall  employ  all  means  of  public  involvement deemed necessary or
 36    required in chapter 52, title 67, Idaho Code, and shall cooperate  fully  with
 37    the public involvement or planning processes of other appropriate public agen-
 38    cies.
                                                                        
 39        SECTION  10.  An  emergency  existing  therefor, which emergency is hereby
 40    declared to exist, this act shall be in full force and effect on and after its
 41    passage and approval, and, notwithstanding any other provision of  law,  shall
 42    apply  to  any  subbasin assessment or total maximum daily load pending on the
 43    effective date of this act or initiated subsequent to the  effective  date  of
 44    this act.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 14864

This legislation codifies existing practices and needed
improvements in the development and implementation of TMDLs.  It
requires the Director of the Department of Environmental Quality
(DEQ) to consult with Watershed Advisory Groups (WAGs) to provide
them with a full opportunity to participate in the development,
implementation and periodic reviews of Total Maximum Daily Loads
(TMDLs) and any supporting subbasin assessment for their
watersheds. 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 NOTE

There are no other fiscal impacts, since this bill codifies
existing practices and policies in the development and
implementation of TMDLs.  Existing Section 39-3607, Idaho Code,
requires the Director of the Department of Environmental Quality
to conduct use attainability and status surveys for every Idaho
water body.  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.

          

Contact
Name:  Rep. Lawerence Denney 
Phone: (208) 332-1000

          
STATEMENT OF PURPOSE/FISCAL NOTE                    H 145