Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1001 - Final Rule

Antidegradation implementation procedures.

EPA Disapproval of Insignificant Activity or Discharge Exemption

As a result of this disapproval, DEQ initiated negotiated rulemaking docket 58-0102-1301 in August 2013.

Final Rule Package Approved by EPA

Final Rule Package Submitted to EPA for Approval

The following documents were submitted in paper and electronic formats:

Status of Rulemaking

The pending rule was adopted by the Board in November 2010 and was reviewed by the Idaho Legislature during the 2011 session. Under HCR16, the Legislature rejected certain portions of the rule and approved the remainder of the rule. The Idaho Administrative Procedure Act provides that when a pending rule is approved, amended or modified by a concurrent resolution, the rule becomes final and effective upon adoption of the concurrent resolution. The concurrent resolution was adopted on March 18, 2011, and therefore, the antidegradation rule became final and effective on March 18, 2011. 

The legislature also adopted HB153 that revised the Idaho Code to include sections addressing antidegradation, including sections regarding the definition of degradation, the treatment of general permits, the identification of tier 2 waters, and insignificant discharges or activities. The new sections added to Idaho law by HB153 correspond to the portions of the rule rejected by HCR16. HB 153 was signed into law by the Governor on March 22, 2011.

Effective Date

Final and effective 03/18/11

Overview

The Clean Water Act requires Idaho to protect the existing uses of all state waters and to protect high quality waters from degradation that, upon public review, is not necessary and important. This is known as antidegradation.  Federal law requires the state to have both an antidegradation policy and methods to implement the policy. Although Idaho has an antidegradation policy in rule, there are no procedures in the rules on how to implement the antidegradation policy.

In September 2009, the U.S. Environmental Protection Agency (EPA) was given a 60-day notice of intent to sue by the Idaho Conservation League over EPA's failure, in oversight of Idaho's water quality rules, to require Idaho to identify its antidegradation implementation procedure. If Idaho does not act, EPA may be forced to act, and this may result in a federal rule requiring antidegradation review.

DEQ initiated negotiated rulemaking in an effort to forestall the pending legal action against EPA that would force EPA to take action with respect to Idaho’s rule. DEQ held six rulemaking meetings in developing this proposed rule and intends to develop supporting guidance. Link to antidegradation guidance development page.

DEQ proposes to revise its Water Quality Standards, IDAPA 58.01.02, to include procedures for implementing efforts to limit degradation of water quality. This proposed rule addresses:

  1. Activities subject to antidegradation review;
  2. Definition of degradation and impairment and the information needed to determine them;
  3. How it is decided where each of the three levels of protection from degradation is applied;
  4. Exemptions to antidegradation review;
  5. Determination of insignificant discharges not warranting analysis of their degradation to high quality water;
  6. How DEQ will evaluate changes in water quality;
  7. Waste treatment alternatives analysis to identify least degrading option for significant degradation of high quality water;
  8. Socioeconomic analysis needed to justify degradation of high quality water; and
  9. What is needed to document existing sources of pollution are meeting required controls.

After consideration of public comments, the rule has been revised at Sections 010 and 052. The remainer of the rule has been adopted as proposed.

Two documents providing assistance in understanding and achieving compliance with the requirements of these rules may be obtained by downloading below or contacting Paula Wilson at paula.wilson@deq.idaho.gov, (208) 373-0418.

Comment Period/Proposed Rule

September 1 thorugh October 1, 2010

Public Comments/Proposed Rule

Comment Date Received Submitted by
Comment on Proposed Rule 09/09/10 U.S. EPA Region 10
Comment on Proposed Rule 10/01/10 U.S. EPA Region 10
Comment on Proposed Rule 09/30/10 Potlatch Corporation
Comment on Proposed Rule 09/30/10 Idaho Rivers United
Comment on Proposed Rule 09/30/10 USDA Forest Service
Comment on Proposed Rule 09/30/10 City of Nampa
Comment on Proposed Rule 10/01/10 J.R. Simplot Company
Comment on Proposed Rule 10/01/10 Assn. of Idaho Cities
Comment on Proposed Rule 10/01/10 Hecla Limited
Comment on Proposed Rule 10/01/10 Clearwater Paper Corporation
Comment on Proposed Rule 10/01/10 Idaho Conservation League
Comment on Proposed Rule 10/01/10 Idaho Water Users Assn.
Comment on Proposed Rule 10/01/10 Northwest Food Processors Assn.
Comment on Proposed Rule 10/01/10 Idaho Association of Commerce and Industry/Idaho Mining Assn.
Comment on Proposed Rule 10/05/10 Idaho Forest Group
Comments Received After Closing of Proposed Rule Comment Period
Comment on Proposed Rule 11/08/10 City of Post Falls/Hayden Area Regional Sewer Board
Comment on Proposed Rule 11/08/10 Idaho Association of Commerce and Industry/Idaho Mining Assn.
Comment on Proposed Rule 11/08/10 Bear Lake Watch Inc.

Negotiated Rulemaking

The text of the rule has been drafted based on discussions held and concerns raised during negotiations conducted pursuant to Idaho Code Section 67-5220 and IDAPA 58.01.23.810-815. On April 7, 2010, the Notice of Negotiated Rulemaking was published in the Idaho Administrative Bulletin, Vol. 10-4, pages 26 through 27, and a preliminary draft rule was made available for public review. Meetings were held on April 22, May 12, June 2, June 15, July 8, and July 21, 2010. Members of the public participated in this negotiated rulemaking process by attending the meetings and submitting written comments. A record of the negotiated rule drafts, written comments received, and documents distributed during the negotiated rulemaking process is available below.

Draft Negotiated Rule

The draft negotiated rule can be obtained here or by contacting Paula Wilson at (208) 373-0418 or paula.wilson@deq.idaho.gov.

Draft Negotiated Rule Date Posted Written Comment Deadline
Preliminary Draft (Draft No. 1) 04/06/10 04/28/10
Draft No. 2 05/07/10 05/19/10
Draft No. 3 05/25/10 No written comment deadline was set for Draft No. 3.
Draft No. 4 06/09/10 06/21/10
Draft No. 5 07/01/10 07/12/10
Draft No. 6 07/14/10 07/27/10
Draft No. 7 08/05/10 The comment period for this negotiated rulemaking has concluded. The comment period on the proposed rule will commence upon publication of the proposed rule in the Idaho Administrative Bulletin.  DEQ intends to publish the proposed rule on September 1, 2010.

Public Comments/Negotiated Rulemaking

Comment Date Received Submitted by
Comment on Draft No. 1 04/28/10 Idaho Assn. of Realtors
Comment on Draft No. 1 04/28/10 Idaho Assn. of Commerce and Industry
Comment on Draft No. 1 04/28/10 Assn. of Idaho Cities
Comment on Draft No. 1 04/28/10 Hecla Mining Co.
Comment on Draft No. 1 04/28/10 USDA Forest Service
Comment on Draft No. 1 04/28/10 Glen Holdren, Keller Associates, Inc.
Comment on Draft No. 1 04/28/10 Steve Cory
Comment on Draft No. 1 04/29/10 City of Post Falls
Comment on Draft No. 1 05/05/10 U.S. EPA Region 10
Comment on Draft No. 2 05/11/10 Pend Oreille Clean Water Alliance
Comment on Draft No. 2 05/13/10 Lawrence Bennett, Bennett Engineering
Comment on Draft No. 2 05/18/10 USDA Forest Service Region 1
Comment on Draft No. 2 05/19/10 USDA Forest Service Region 4
Comment on Draft No. 2 05/19/10 Assn. of Idaho Cities
Comment on Draft No. 2 06/01/10 Idaho Assn. of Commerce and Industry
Comment on Draft No. 3 06/02/10 Lawrence Bennett, Bennett Engineering
Comment on Draft No. 4 06/18/10 City of Post Falls
Comment on Draft No. 4 06/18/10 Idaho Transportation Dept.
Comment on Draft No. 4 06/18/10

Paul Klatt, J-U-B Engineers, Inc.

Comment on Draft No. 4 07/07/10 Idaho Assn. of Commerce and Industry
Comment on Draft No. 6 07/19/10 Assn. of Idaho Cities
Comment on Draft No. 6 07/19/10 Idaho Dairymen Assn., Inc.
Comment on Draft List of NPDES Discharges to Tier I Waters 07/23/10 Lawrence Bennett, Bennett Engineering
Comment on Draft No. 6 07/27/10 Idaho Association of Commerce and Industry
Comment on Draft No. 6 07/27/10 Idaho Water Users Assn.
Comment on Draft No. 6 07/27/10 Boise Project Board of Control
Comment on Draft No. 6 07/27/10 Idaho Power Co.
Comment on Draft No. 6 07/27/10 Hecla Mining Co.
Comment on Draft No. 6 07/28/10 U.S. EPA Region 10

Documents Distributed for Negotiated Rulemaking

Document Date Posted

Notice of Intent to Sue for Violations of the Clean Water Act Regarding Idaho’s Antidegradation Policy Implementation Methods

03/29/10
Federal Antidegradation Rule – 40 CFR 131.12 03/29/10
Rulemaking Schedule 03/29/10
April 22, 2010 Meeting Agenda 04/14/10
2005 Ephraim King memo regarding de-minimis discharge 04/21/10

ICL Complaint filed 4/19/10

04/21/10
1996 letter from EPA to DEQ 04/21/10
1985 letter from EPA to DEQ 04/21/10
What is Antidegradation? (PowerPoint presentation) 04/28/10
History of Antidegradation in Idaho (PowerPoint presentation) 04/28/10
1990 letter from EPA to DEQ 04/28/10
1997 letter from EPA to DEQ 04/28/10
Summary of Select States' Antidegradation Policies 04/28/10

River Network Antidegradation Online Report Database
Website provides a state-by-state look at antidegradation policies around the country.

04/28/10
Table containing links to other states’ antidegradation policies and implementation methods Updated 05/20/10
May 12, 2010 Meeting Agenda 05/07/10
Interim Antidegradation Review Guidelines for Idaho 05/19/10
Idaho Antidegradation Implementation Discussion Paper:
Waterbody-by-Waterbody or Pollutant-by-Pollutant
05/25/10
June 2, 2010 Meeting Agenda 06/01/10
Major Topics/Decision Points in Antidegradation Implementation 06/01/10
Waterbody-by-Waterbody versus Pollutant-by-Pollutant Implementation Scenarios 06/09/10
June 15, 2010 Meeting Agenda 06/09/10
Idaho Antidegradation Implementation Discussion Paper: Defining Significance Thresholds for Water Quality Degradation 06/10/10
Idaho Antidegradation Implementation Discussion Paper: New or Increased Discharges 06/10/10
Antidegradation Flowchart 06/23/10
Idaho Antidegradation Implementation Discussion Paper: Point and Nonpoint Source Controls 06/28/10
Implementation Discussion Paper: Alternatives Analysis 07/01/10
July 8, 2010 Meeting Agenda 07/01/10
Identification of Tier I and Tier II Waters 07/12/10
Aquatic Life Tier II, NFS Good Biological Data (Excel spreadsheet in PDF format) 07/12/10
List of NPDES Discharges to Tier I Waters (Draft) (Excel spreadsheet in PDF format) 07/12/10

Characterizing the Effluent & Receiving Water: Identify Pollutants of Concern

07/12/10
July 21, 2010 Meeting Agenda 07/14/10

Idaho Antidegradation Implementation Discussion Paper: Socioeconomic Justification

07/15/10
Idaho Antidegradation Implementation Discussion Paper:  Antidegradation Reviews for General Permits 07/15/10
2007 Letter from DEQ to EPA regarding Special Resource Waters 07/21/10

Staff Contacts

Water Quality Standards Lead
Jason Pappani
DEQ State Office
Water Quality Division
1410 N. Hilton
Boise, ID 83706
(208) 373-0515
jason.pappani@deq.idaho.gov

Administrative Rules Coordinator
Paula Wilson
DEQ State Office
Attorney General's Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0418
paula.wilson@deq.idaho.gov