Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1502 - Proposed Rule

Rulemaking initiated to update DEQ’s existing hardness dependent criteria by using EPA’s 2007 304(a) copper criteria. This update is a Reasonable and Prudent Alternative identified in National Oceanic and Atmospheric Administration’s (NOAA) biological opinion (BiOp) on Idaho’s criteria for toxic substances to support aquatic life.

Public Comment Opportunities | Negotiated Rulemaking History

Status of Rulemaking

Proposed rule open for public comment September 6 through October 6, 2017.

November 2017 Board of Environmental Quality Meeting

Rulemaking Documents Required by Idaho Administrative Procedure Act

Documents Referenced in Rule

Overview

This rulemaking has been initiated to update DEQ’s existing hardness dependent criteria by using EPA’s 2007 304(a) copper criteria. This update is a Reasonable and Prudent Alternative identified in National Oceanic and Atmospheric Administration’s (NOAA) biological opinion (BiOp) on Idaho’s criteria for toxic substances to support aquatic life.

The toxicity of copper to aquatic life is highly variable depending on physicochemical factors within a water body. The effect of hardness on metal toxicity has long been acknowledged as one such factor and is reflected in DEQ’s current hardness dependent criteria, whereby the acute and chronic criteria are determined based on the total hardness of the receiving water body. However, DEQ’s current hardness dependent criteria do not take into account the effects of other physicochemical properties of the receiving water body which affect toxicity, leading to DEQ’s current criteria being either over- or under-protective of aquatic life.

This action is identified in NOAA’s (BiOp) on Idaho’s criteria for toxic substances to support aquatic life. This BiOp concluded that the current copper criteria were not always protective of aquatic life and would result in adverse modification of critical habitat. NOAA’s recommendation is to use EPA’s 2007 304(a) copper criteria, which uses other physicochemical properties of the water (e.g., pH, dissolved organic carbon, etc.) to predict water-body specific criteria known as the Biotic Ligand Model (BLM). NOAA has called for state adoption and EPA approval or EPA promulgation of these criteria by May 2017.  Because of this, DEQ’s 2014 triennial review identified revision of the aquatic life criteria for copper as a high priority. By adopting a copper criterion based on the BLM, DEQ will be able to use the most current state of the science to ensure that the criteria are more precise and are neither unnecessarily burdening dischargers nor increasing risk to aquatic life.

This proposed rule replaces the existing hardness dependent criteria for copper with a similar, albeit more detailed, modeled approach.  Additionally, the proposed rule references the “Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model” which details procedures for implementing the criteria including determining minimum data requirements for BLM inputs and guidance for estimating protective criteria when data are incomplete or absent.

Idahoans that recreate in, drink from, or fish Idaho’s surface waters, and any who discharge pollutants to those same waters, may be interested in commenting on this proposed rule. After consideration of public comments, DEQ intends to present the final proposal to the Idaho Board of Environmental Quality (Board) on November 16, 2017, for adoption of a pending rule. The rule is expected to be final and effective upon the conclusion of the 2018 legislative session if adopted by the Board and approved by the Legislature.

Effective for Clean Water Act Purposes

Water quality standards adopted and submitted to EPA since May 30, 2000, are not effective for federal Clean Water Act (CWA) purposes until EPA approves them (see 40 CFR 131.21). This is known as the Alaska Rule. This rulemaking will be promulgated so that the existing rule, which continues to be effective for CWA purposes, remains in the Idaho Administrative Code until EPA approves the rule revisions. Notations explaining the effectiveness of the rule sections are also included. Upon EPA approval, the revised rule will become effective for CWA purposes and the previous rule and notations will be deleted from the Idaho Administrative Code. Information regarding the status of EPA review will be posted here.

Incorporation by Reference

Pursuant to Section 67-5229(2)(a), Idaho Code, the following is a brief synopsis of why the incorporation by reference is necessary:

EPA national recommended criteria, “Aquatic Life Ambient Freshwater Quality Criteria – Copper”: EPA-822-R-07-001 (February 2007), is incorporated by reference in the proposed rule.  This document provides guidance for calculating aquatic life criteria for copper using the Biotic Ligand Model software. Incorporation by reference benefits the regulated community by ensuring that the state rule is consistent with the EPA guidance.  The alternative to incorporating by reference is to restate the document in the rule, which would be impractical and costly.

Public Comment Opportunities

Submit all written comments by mail, fax or e-mail to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481, paula.wilson@deq.idaho.gov

Comment Deadline
October 6, 2017

Public Hearing
Pursuant to Section 67-5222(2), Idaho Code, a public hearing will be held if requested in writing by twenty-five (25) persons, a political subdivision, or an agency.  Written requests for a hearing must be received by the undersigned on or before September 22, 2017.  If no such written request is received, a public hearing pursuant to Section 67-5222(2), Idaho Code, will not be held. The public will have the opportunity to provide oral comments on the proposed rule during the November 16, 2017, meeting of the Board.

Written Public Comments
Submitted by Date Received
Kinross DeLamar Mining Company (comments on proposed rule) 10/06/17
EPA Region 10 (comments on proposed rule and final “Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model) 10/06/17
Treated Wood Council and Western Wood Preservers Institute (comments on final “Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model”) 10/06/17

Negotiated Rulemaking History

The text of the proposed rule was drafted based on discussions held and concerns raised during negotiations conducted pursuant to Idaho Code § 67-5220 and IDAPA 58.01.23.810-815. The Notice of Negotiated Rulemaking was published in the October 2015 issue of the Idaho Administrative Bulletin, and a preliminary draft rule was made available for public review.  Nine negotiated rulemaking and guidance development meetings were held between October 28, 2015, and July 18, 2017. Key information was posted on the DEQ rulemaking web page and distributed to the public. Members of the public participated in the negotiated rulemaking process by attending the meetings and by submitting written comments.

All comments received during the negotiated rulemaking process were considered by DEQ when making decisions regarding development of the rule.  For comments that were not incorporated into the draft rule, DEQ’s response to those comments is included in the negotiated rulemaking summary. At the conclusion of the negotiated rulemaking process, DEQ formatted the final draft for publication as a proposed rule. DEQ is now seeking public comment on the proposed rule. The negotiated rulemaking record, which includes the negotiated rule drafts, written public comments, documents distributed during the negotiated rulemaking process, and the negotiated rulemaking summary, is available on this webpage.

Negotiated Rulemaking Meeting Schedule

No additional meetings are scheduled.

Previous Meetings

July 18, 2017 - Agenda | Sign-in Sheets
June 6, 2017 - Agenda | Sign-in Sheets
April 25, 2017 - Agenda | Sign-in Sheets
December 20, 2016 - Agenda | Sign-in Sheets
July 26, 2016 - Agenda | Sign-in Sheets
June 2, 2016 -
Agenda | Sign-in Sheets
April 20, 2016 -
Agenda | Sign-in Sheets
December 11, 2015 - Agenda | Sign-in Sheets
October 28, 2015
- Agenda | Sign-in Sheets

Public Comments on Guidance Development Meeting Presentations - July 26, 2016 through July 18, 2017

Public Comment Period on July 18, 2017 Guidance Development Meeting Presentation

DRAFT Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model (July 2017)

DRAFT Statewide Monitoring for Inputs to the Copper Biotic Ligand Model (July 2017)

Update to Copper Criteria for Aquatic Life Use - DEQ PowerPoint Presentation (July 2017)

07/17/17

 

 

 

 

 

 

07/18/17

07/18/17 07/28/17
Guidance Development Documents Date Posted Date of Meeting Discussion Written Comment Deadline

Written Public Comments

Submitted by Date Received
 Copper Development Association 07/28/17

Public Comment Period on June 6, 2017 Guidance Development Meeting Presentation

DRAFT Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model (June 2017)

Update to Copper Criteria for Aquatic Life Use: Guidance Development - DEQ PowerPoint Presentation (June 2017)

DRAFT Statewide Monitoring for Inputs to the Copper Biotic Ligand Model (June 2017)

06/12/17

 

 

 


06/12/17

 

 


06/14/17

06/06/17 06/28/17
Guidance Development Document Date Posted Date of Meeting Discussion Written Comment Deadline
Written Public Comments
Submitted by Date Received
Clearwater Paper  06/30/17
U.S. EPA Region 10 07/12/17

Public Comment Period on April 25, 2017 Guidance Development Meeting Presentation

DRAFT Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model (April 2017)

Update to Copper Criteria for Aquatic Life Use: Guidance Development - DEQ PowerPoint Presentation (April 2017)

04/20/17

 

 


04/25/17

04/25/17 05/05/17
Guidance Development Document Date Posted Date of Meeting Discussion Written Comment Deadline
Written Public Comments

Public Comment Period on December 20, 2016 Guidance Development Meeting Presentation

DRAFT Implementation Guidance for the Idaho Copper Criteria for Aquatic Life: Using the Biotic Ligand Model (December 2016)

Update to Copper Criteria for Aquatic Life Use: Guidance Development - DEQ PowerPoint Presentation (December 2016)

12/19/16

 

 

 

 

12/20/16

12/20/16 02/03/17
Guidance Development Document Date Posted Date of Meeting Discussion Written Comment Deadline

Written Public Comments

Submitted by Date Received
Copper Development Association 02/01/17 
U.S. EPA Region 10 02/01/17 
Blackbird Mine Site Group 02/01/17 
Clearwater Paper 02/03/17 
Idaho Association of Commerce and Industry (IACI) 02/03/17 
Chris Mebane, U.S. Geological Survey (USGS) 02/03/17 
Association of Idaho Cities (AIC) 02/07/17

Public Comment Period on July 26, 2016 Guidance Development Meeting Presentation

Guidance Development Documents Date Posted Date of Meeting Discussion Written Comment Deadline

Update to Copper Criteria for Aquatic Life Use: Guidance Development - DEQ PowerPoint Presentation

Draft Copper Criteria Guidance Outline

Monitoring for Inputs to the Biotic Ligand Model - Draft Monitoring Plan

07/26/16





07/08/16


07/26/16

 

07/26/16 08/05/16

Written Public Comments

Submitted by Date Received
Chris Mebane U.S. Geological Survey (USGS) | Spreadsheet 08/05/16
Copper Development Association 08/05/16
Idaho Association of Commerce and Industry (IACI) 08/05/16
Association of Idaho Cities (AIC) 08/10/16
U.S. EPA Region 10 08/10/16

Public Comments on Negotiated Rulemaking Meeting Presentations - December 11, 2015 through June 2, 2016

Public Comment Period on June 2, 2016 Negotiated Rulemaking Meeting Presentation

DEQ is requesting written comments on the June 2, 2016 negotiated rulemaking meeting presentation. The presentation is posted below.

Update to Copper Criteria for Aquatic Life Use - DEQ PowerPoint Presentation 06/02/16 06/17/16
Document Date of Meeting Discussion Written Comment Deadline

Written Public Comments

Submitted by Date Received
Idaho Conservation League (ICL) 06/17/16

Public Comment Period on April 20, 2016 Negotiated Rulemaking Meeting Presentation

DEQ is requesting written comments on the April 20, 2016 negotiated rulemaking meeting presentation. The presentation is posted below.

Update to Copper Criteria for Aquatic Life Use - DEQ PowerPoint Presentation 04/20/16 05/09/16
Document Date of Meeting Discussion Written Comment Deadline

Written Public Comments

Submitted by Date Received
Clearwater Paper 05/06/16
Copper Development Association 05/09/16
J.R. Simplot Company 05/09/16
City of Boise 05/09/16
U.S. EPA Region 10 05/16/16

Public Comment Period on December 11, 2015 Negotiated Rulemaking Meeting Presentations

DEQ is requesting written comments on the December 11, 2015 negotiated rulemaking meeting presentations. The presentation materials are posted below.

Update to Copper Criteria for Aquatic Life Use - DEQ PowerPoint Presentation

Calculation of BLM Fixed Monitoring Benchmarks for Copper at Selected Monitoring Sites in Colorado, EPA, April 2012

Update on the Copper BLM v MLR Performance - Mebane PowerPoint

Hardness-Based Metals Criteria in NPDES Permits - EPA PowerPoint Presentation

12/11/15 01/15/16
Document Date of Meeting Discussion Written Comment Deadline

Written Public Comments

Submitted by Date Received
U.S. EPA Region 10 01/12/16
Copper Development Association 01/15/16
Association of Idaho Cities 01/26/16

Draft Negotiated Rule and Related Documents

Draft Negotiated Rule Date Posted Date of Meeting Discussion Written Comment Deadline

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 September 6, 2017 issue of the Idaho Administrative Bulletin.

Draft No. 4

07/12/17

07/18/17 07/28/17

Draft No. 3

“US EPA WQC Calculation” for copper in Biotic Ligand Model (BLM) Version 3.1.2.37 (October 2015) BLM version 3.1.2.37 is the current EPA recommended criterion as of October 2015.

“Aquatic Life Ambient Freshwater Quality Criteria – Copper”: EPA-822-R-07-001 (February 2007)

05/27/17

 

 

05/27/17

 

 

 


05/27/17

06/06/17  06/16/17

Draft No. 2

07/08/16 07/26/16 DEQ is not seeking public comments on this draft.

Preliminary Draft (Draft No. 1)

Update to Copper Criteria for Aquatic Life Use – DEQ PowerPoint Presentation

Comparisons of the 2007 Biotic Ligand Model (BLM)-based and the 1984 hardness-based Copper criteria: update considerations – USGS (Mebane) PowerPoint Presentation

10/09/15 10/28/15 11/09/15

Written Public Comments

Comment Submitted by Date Received
No comments received on Draft No. 4    
Comment on Draft No. 3 U.S. EPA Region 10 07/10/17
Comment on Draft No. 2 U.S. EPA Region 10 08/10/16
Comment on Draft No. 1 Idaho Conservation League (ICL) 10/30/15
Comment on Draft No. 1 Copper Development Association 11/09/15
Comment on Draft No. 1 U.S. EPA Region 10 01/12/16

Documents Distributed for Negotiated Rulemaking

Meeting Presentations and Miscellaneous Documents Date Posted
Revised Rulemaking Schedule (revised May 24, 2017) 05/27/17
Revised Rulemaking Schedule (revised July 8, 2016) 07/08/16
Data Quality Matters for Biotic Ligand Modeling Work: pH and DOC – Mebane, USGS PowerPoint Presentation (06/02/16 meeting) 06/03/16
June 1, 2016 Letter from DEQ to EPA regarding EPA Proposed Aquatic Life Criteria for Copper and Cadmium in Oregon (06/02/16 meeting) 06/01/16
Draft Technical Support Document: Recommended Estimates for Missing Water Quality Parameters for Application in EPA’s Biotic Ligand Model, EPA, March 2016 (04/20/16 meeting) 04/12/16
EPA’s Proposed Aquatic Life Criteria for Copper and Cadmium in Oregon, March 31, 2016 (04/20/16 meeting) 04/12/16
Fact Sheet: Proposed Aquatic Life Criteria for Copper and Cadmium in Oregon, EPA, April 2016 (04/20/16 meeting) 04/12/16
Fish and Wildlife Service Biological Opinion (BiOp) (10/28/15 meeting) 10/07/15
National Oceanic and Atmospheric Administration (NOAA) Biological Opinion (BiOp) (10/28/15 meeting) 10/07/15
Rulemaking Schedule 10/21/15

 


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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

Related Pages

DEQ Rulemakings