Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1102 - Final Rule

Rulemaking initiated to modify the existing site specific temperature criterion for the Snake River to protect fall spawning of Chinook salmon from Hell’s Canyon Dam to the Salmon River.

Final Rule Package Submitted to EPA for Approval

Until EPA approves the revisions in this rule docket, the previous criterion published in 2005 Idaho Administrative Code continues to apply and are effective for Clean Water Act purposes.

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

03/29/12

Overview

DEQ proposes to revise its Water Quality Standards, IDAPA 58.01.02, to modify the existing site-specific temperature criterion for the Snake River to protect fall spawning of Chinook salmon from Hell’s Canyon Dam to the Salmon River. This site-specific criterion would be a change from the current criterion of a maximum weekly maximum of 13°C from October 23rd through April 15th to a site-specific criterion of weekly maximum temperature (WMT) of 14.5°C from October 23rd through November 6th and a maximum WMT of 13°C from November 7th through April 15th. The first date a WMT can be calculated is October 29th.

The proposed rule change recognizes the declining thermal regime in the Snake River during the fall spawning season and that higher temperatures at the outset of the spawning season are both protective and supportive of the fall Chinook salmon spawning and incubation occurring in the Snake River during this time. This proposed rule change recognizes that a need to change the site-specific temperature criterion in the Snake River between the Hell’s Canyon Dam and the confluence with the Salmon River exists. The current site-specific criterion of 13°C between October 23rd and April 15th is not regularly met during the first 14 days of the fall spawning season and yet salmonid spawning and incubation are at the highest levels of the last two decades. The proposed rule changes the temperature criteria to 14.5°C for the first 14 days of the spawning period and then reduced to 13°C for the balance of the fall and early spring.

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

Comment Period/Proposed Rule

August 3, 2011 through September 2, 2011

Public Comments/Proposed Rule

Written Public Comments Date Received Submitted by
Comment on Proposed Rule 08/30/11 National Oceanic and Atmospheric Administration, National Marine Fisheries Service
Comment on Proposed Rule 09/02/11 U.S. EPA Region 10
Comment on Proposed Rule 09/02/11 Barker Rosholt & Simpson LLP on behalf of Idaho Power Company
Comment on Proposed Rule 09/08/11 Nez Perce Tribe
Comment on Proposed Rule 09/08/11 Columbia River Inter-Tribal Fish Commission (CRITFC)
Comment on Proposed Rule 09/09/11 Idaho Rivers United

Negotiated Rulemaking

The text of the proposed 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 June 1, 2011, the Notice of Negotiated Rulemaking was published in the Idaho Administrative Bulletin, Vol. 11-6, pages 77 through 78, and a preliminary draft rule was made available for public review.  A meeting was held on June 21, 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) 05/31/11 06/24/11
Draft No. 2 07/05/11 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 August 3, 2011.

Written Public Comments/Negotiated Rulemaking

Comment Date Received Submitted by
Comment on Draft No. 1 06/13/11

Oregon DEQ

Comment on Draft No. 1 06/24/11 Columbia River Inter-Tribal Fish Commission (CRITFC)
Comment on Draft No. 1 06/24/11 Nez Perce Tribe
Comment on Draft No. 1 06/24/11 Idaho Rivers United

Documents Distributed for Negotiated Rulemaking

Document Date Posted
Rulemaking Schedule 06/01/11
White Paper: The Effects of the Hells Canyon Complex Relative to Water Temperature and Fall Chinook Salmon (Idaho Power Company, July 2007) 05/31/11
Nez Perce/CRITFC Review of White Paper (August 30, 2007) 05/31/11
Idaho Power Company Response to Nez Perce/CRITFC Review of Temperature White Paper (May  2, 2008) 05/31/11
Proposal to Initiate Negotiated Rulemaking for Site Specific Temperature Criteria for Fall Chinook Salmon Spawning in the Hells Canyon Reach of the Snake River (Idaho Power Company, June 2010) 05/31/11
USFWS letter to FERC requesting development of final licensing action for Hells Canyon Hydroelectric Project (June 21, 2010) 05/31/11
Considerations on the Natural Seasonal Thermal Pattern (Columbia River Inter-Tribal Fish Commission, October 2010) 05/31/11
NOAA Comments on Idaho Power Company’s Water Quality Application for the Hells Canyon Complex Hydroelectric Project (January 27, 2011) 05/31/11
USFWS letter to Oregon DEQ re rulemaking for site-specific temperature criteria at Hells Canyon Dam (February 4, 2011) 05/31/11
Columbia River Inter-Tribal Fish Commission’s (CRITFC) letter to Oregon Environmental Quality Commission re Idaho Power Petition for Rulemaking (January 26, 2011) 05/31/11
Comments on CRITFC’s January 26, 2011 letter to Oregon Environmental Quality Commission (Coutant, February 8, 2011) 05/31/11
USEPA letter to Oregon DEQ re Idaho Power Company’s petition to initiate rulemaking (January 28, 2011) 06/02/11
Fall Chinook Salmon Site Specific Criteria (Idaho Power Company, June 21, 2011; PowerPoint presentation) 06/21/11
Proposal to Initiate Negotiated Rule Making for Site Specific Temperature Criteria for Fall Chinook Salmon Spawning in the Hells Canyon Reach of the Snake River – Revision 1 (Idaho Power Company, July 2010) 07/05/11

Negotiated Rulemaking Meeting

A negotiated rulemaking meeting was held June 21, 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