Protecting Public Health and the Environment.

Water Quality: Docket No 58-0102-1101 - Final Rule

Rulemaking to revise two sections addressing temperature: 1) the thermal treatment requirements which limit the rise in water temperature due to wastewater treatment plants, and 2) site-specific criteria for water temperature to protect salmonid spawning.

Final Rule Package Submitted to EPA for Approval

Until EPA approves the revisions in this rule docket, the previous treatment requirements published in 2011 Idaho Administrative Code continue to apply and are effective for Clean Water Act purposes.

The following documents were submitted in paper and electronic formats:

EPA Action on Temporary Rule

Temporary Rule Package Submitted to EPA for Approval

The following documents were submitted in paper and electronic formats:

Status of Rulemaking

Pending Rule adopted by Board and approved by Legislature. Final and effective 03/29/12.

Effective Date

The temporary rule was effective June 30, 2011. The final rule was effective 03/29/12.

Overview

As NPDES permits are coming up for renewal, the U.S. Environmental Protection Agency (EPA) has begun including thermal effluent limits in reissued permits. The City of Boise NPDES permit renewal is expected to be released as a draft in the summer of 2011 and will be based on current water quality standards unless they are revised promptly. Without this rule change, thermal effluent limits in NPDES permits and costs to meet those limits will be greater than needed to protect aquatic life resources.

Two parts of Idaho’s water quality standards are likely to drive inordinate thermal treatment costs:

  1. excessive limits on water temperature rise in Subsections 401.01.c. and d. (aka thermal treatment requirements); and
  2. outdated numeric criteria to protect salmonid spawning.

DEQ proposes to revise the Water Quality Standards, IDAPA 58.01.02, in two sections addressing temperature: 1) the thermal treatment requirements in Subsections 401.01.c. and d. which limit the rise in water temperature due to wastewater treatment plants, and 2) site-specific criteria for water temperature in Section 278 to protect salmonid spawning.

The origin of Idaho’s thermal treatment requirements is unknown but is thought to be based on avoiding ‘thermal shock’ to fish and providing a level of protection that is largely redundant of and far in excess of that provided by ambient criteria. While ‘thermal shock’ can be an issue for fish, it is thought to occur when fish encounter abrupt temperature changes of 5-6°C or more, not 1-2°C. DEQ proposes to remove Subsections 401.01.c. and d. and rely on the retained language in Subsections 401.01.a. and b. to provide a more flexible means to address possible thermal shock on a case-by-case basis and to provide full protection from adverse effects of heated effluent in addition to protection provided to aquatic life by ambient temperature criteria in Section 250.

Idaho’s current salmonid spawning criteria are based on recommendations from EPA made in the mid 1970s.  EPA updated its recommendation regionally in 2003.  While DEQ would like to adopt this recommendation statewide, questions about time periods in which the criterion would apply in various waterbodies across the state has lead DEQ at this time to scale back to a site-specific proposal. DEQ proposes to adopt EPA’s recommended criterion of 13°C as a maximum seven-day average of daily maximums as a site-specific criterion to protect salmonid spawning and incubation in the three waterbodies within the Lower Boise watershed (HUC 17050114) currently designated for salmonid spawning. The proposal specifies the time period for which the criterion applies to each waterbody and the species which are protected.

After consideration of public comments, the rule has been adopted as initially proposed.

Temporary Rule Justification

Pursuant to Section 67-5226(1)(c), Idaho Code, the Governor has found that temporary adoption of the rule is appropriate in that the rule confers a benefit.  Adoption of a temporary rule would reduce thermal treatment costs for pending NPDES permit renewals.

Comment Period/Proposed Rule

August 3, 2011 through September 2, 2011

Public Comments/Proposed Rule

Comment Date Received Submitted by
Comment on Proposed Rule 09/02/11 U.S. EPA Region 10

Negotiated Rulemaking

The text of the rule has been drafted based on discussions held and concerns raised during negotiations conducted pursuant to Idaho Code § 67-5220 and IDAPA 58.01.23.810-815. On May 4, 2011, the Notice of Negotiated Rulemaking was published in the Idaho Administrative Bulletin, Vol. 11-5, pages 99 through 100, and a preliminary draft rule was made available for public review.  A meeting was held on May 25, 2011. Several members of the public participated in this negotiated rulemaking process by attending the meeting and by 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) 04/28/11 05/27/11
Draft No. 2 06/17/11 The comment period for this negotiated rulemaking has concluded. DEQ intends to submit the final draft to the Board of Environmental Quality for consideration for temporary adoption at the June 2011 Board meeting.  If the rule is adopted by the Board, DEQ will submit the rule for publication in the August 2011 issue of the Idaho Administrative Bulletin and will initiate proposed rulemaking.

Public Comments/Negotiated Rulemaking

Comment Date Received Submitted by
Comment on Draft No. 1 05/27/11 City of Nampa
Comment on Draft No. 1 05/27/11 U.S. EPA Region 10
Comment on Draft No. 1 05/27/11 Association of Idaho Cities
Comment on Draft No. 1 05/27/11 City of Boise

Documents Distributed for Negotiated Rulemaking

Document Date Posted
Rulemaking Schedule 06/01/11

Negotiated Rulemaking Meeting Schedule

A negotiated rulemaking meeting was held May 25, 2011.


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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