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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 - 2005IN 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 39-3614andthrough 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 tocontrolallocate 51 pollutant loads to point source and nonpoint sourcesof pollution onthat 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 34progress and to ascertain when designated beneficial uses will be fully35supportedstandards; 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,mayshall 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,9along with representatives of local governmentand 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 - 2005Moved 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: "withupon"; 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 - 2005IN 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 39-3614andthrough 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 tocontrolallocate 43 pollutant loads to point source and nonpoint sourcesof pollution onthat 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 26progress and to ascertain when designated beneficial uses will be fully27supportedstandards; 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,withupon the advice of the appropriate basin 44 advisory group,mayshall 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, along11with representatives of local governmentand 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 39-3614andthrough 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 tocontrolallocate 47 pollutant loads to point source and nonpoint sourcesof pollution onthat 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 30progress and to ascertain when designated beneficial uses will be fully31supportedstandards; 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,mayshall 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,7along with representatives of local governmentand 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