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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
]]]] 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.
]]]] 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".
]]]] 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
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